HomeMy WebLinkAboutEWH, LLC ( Peter Harbes)1000-120-3-11.14
(f/Wa 1000-120-3-p/o 11.12)
Baseline Documentation
Premises:
5645 Aldrich Lane
Mattituck, New York
34.5 acres
Development Rights Easement
EWH
LIMITED LIABILITY COMPANY
to
TOWN OF SOUTHOLD
Deed dated March 10, 2006
Recorded April 12, 2006
Suffolk County Clerk - Liber D00012445, Page 087
SCTM #:
Premises:
1000-120-3-11.14
(f/k/a 1000-120-3-p/o 11.12)
5645 Aldrich Lane
Hamlet:
Mattituck
Purchase Price:
Funding:
$1,897,500.00
(34.5 buildable acres
$55,000/acre)
CPF Land Bank (2%
funds) and NYS Ag &
Markets Grant
($1,125,385.00)
CPF Project Plan:
Yes
Total Parcel Acreage:
Development Rights:
39.35 acres
34.5 easement acres
Reserved Area:
4.85 acres
Zoned:
A-C
Existing Improvements:
In March 2006 -
"David Rose Perennials" signs,
hooped greenhouses; office/ag
production building; parking lot;
split-rail fencing
VALUATION WITH DEVELOPMENT RIGHTS
A. DESCRIPTION
1. LAND
The subject is a parcel of land having an area of 35.4± acres. It is part of a larger
parcel which has an area of 39.4± acres. We have been instructed to exclude a 4.0± acre
section located in the central portion of the property, which includes the existing
improvements. We have not been furnished a survey depicting the actual dimensions of
the subject area. We have however, been furnished rough sketches and dimensions of
the excluded areas.
The dimensions of the overall property, of which the subject is a portion of, is
described as follows:
The property has an irregular but usable shape (flag shaped) with an easterly border
running in a southerly direction from the northeasterly corner of the property along the
westerly side of Aldrich Lane a distance of 200±'; the easterly border then continues in a
westerly direction a distance of 532±', thence in a southerly direction a distance of 1,601 ±';
the southerly border runs in a westerly direction a distance of 909±'; the westerly border
runs in a northerly direction a distance of 3,943±'; the northerly border runs in an easterly
direction a distance of 1,523±' to the northeasterly corner of the property (or the beginning
point of this description).
_GIVEN
A. DESCRIPTION (CONTINUED)
1. LAND fCONTINUED)
Utilities (electric and telephone) are available along Aldrich Lane which is a two way,
two lane, publicly maintained macadam paved road. Public water is not available in the
subject area.
In the addenda to this report, we have included a copy of the Suffolk County Tax Map
which shows the entire property of which the subject of this appraisal is a portion.
The property has a generally level topography and is mostly cleared. It is situated at
or near grade with the abutting road and is vacant.
Land use surrounding the subject is primarily vacant, or improved residential
properties.
2. IMPROVEMENTS
The land is predominately vacant with the exception of some greenhouses.
B. PRESENT USE AND OCCUPANCY
The subjectis presently vacantland (with some greenhouses)in useforagricultural
purposes.
.GIVEN
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Location Map ] 7'~
Tax Map Location
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Zoning Map ]
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November 2005 photos
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November 2005 photos
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Phase I
Environmental Site Assessment
5645 Aldrich Lane
1.0 SUMMARY
The subject property has been inspected and reviewed independently by Nelson, Pope & Voorhis,
LLC in order determine if potential environmental or public health concerns are present. This
report is intended to identify Recognized Environmental Conditions (as defined in ASTM
Standards on Environmental Site Assessments for Commercial Real Estate and the Target
Protocol) on the subject property based on the four (4) basic components of a Full Phase I
Environmental Site Assessment (ESA): records review, site reconnaissance, interviews and
evaluation and reporting.
The subject property lies in the Hamlet of Mattituck, Town of Southold, County of Suffolk, New
York. The overall property is a 39.3-acre parcel of agricultural land, a portion of which is
occupied by a nursery. This report addresses approximately 34.5 acres presently occupied by the
nursery. The subject property is located at 5645 Aldrich Lane, approximately 1,831 feet south of
Sound Avenue. The L-shaped property has approximately 150 feet of frontage along Aldrich
Lane and widens at the interior of the site. The property is more particularly described as Suffolk
County Tax Map # 1000-120-3-11.12.
The subject property is utilized as farmland and a nursery. A dirt road that fronts on Aldrich
Lane provides access to the farm and nursery. Farmland occupies the northern portion and the
nursery occupies the southern portion of the subject property. The stalks of last year's crops
cover the farm field. Unused, metal irrigation pipes were observed along the southern edge of
the farm field. A landscaped berm separates the agricultural portion of the property from the
nursery. A row of long greenhouses are located adjacent to the landscaped berm. At the time of
the site reconnaissance, the ground was being prepared for additional greenhouses. Open plant
storage areas and a large greenhouse are located on the southern poffion of the property. The
surface of the ground in the open plant storage area is covered with landscape fabric. Trailers,
piping and plastic containers were observed in the vicinity of the western property boundary. A
small area of woods was observed at the southwest comer of the property. No odors, staining or
stressed vegetation were observed on the property.
No Sanborn map coverage was available for the subject property or nearby area. Aerial
photographs from 1938, 1959, 1969, 1976, 1980, 1994, 1999, 2001 and 2004 were reviewed in
order to determine if any prior uses occupied the subject property. The 1938 to 2001 aerial
photographs identify the subject property as farmland. In the 2004 aerial photograph, fanning
activities had ceased on the majority of the property and the area appears to have been
undergoing grading.
5645 Aldrich Lane, Matfltuck
Phase I ESA
An extensive government records search found no potential sources of environmental
degradation on the subject property. No Federal, State and County documented regulated sites
were noted in the vicinity of the subject property. An active spill located within one (1.0) mile of
the subject property is not expected to impact the subject property. Two (2) CLEARS study sites
were identified in proximity to the site; however, none are expected to adversely impact the site.
In conclusion, this assessment has revealed no evidence of a potential recognized environmental
however, the following recommendation is issued:
If the property is to be developed residentially in the furore, soil samples should be
collected and analyzed for the presence of pesticides and metals.
Page 2 of 24
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FIGURE 1
LOCATION MAP
Source: DeLorme Street Atlas
Scale: Not to Scale
5645 Aldrich Lanel Mattituck
Phase I ESA
NORTH
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FIGURE 2
5645 Aldrich Lane~ Matfituck
Ph%e I ESA
SITE SURVEY
Source: Stanley J. Isaksen, Jr., Surveyor
Scale: 1" = 300'
NORTH
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FIGURE 3
LAND USE ~
5645 Aldrich Lane, Mat~dtuck
Phas~ I ESA
SoUrce: NYSGIS Orthoimagery Program, 2004
Scale: 1" = 800'
NORTH
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FIG~E 4
ZONING MAP
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Source: Town of Southold Zoning Map
Scale: 1" = 1,D00'
5645 Aldrich Lane~ Mattituek
PhaSe I ESA
NORTH
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FIGURE 5
SOILS MAP
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Source: Suffolk Cotmty Soil Survey
Scale: 1" = 800'
5645 Aldrich Lane~ Mattituck
Phase IEsA
NOR'I~I
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FIGURE 6
TOPOG~HIC MAP
Source: USGS Topographic Quadrangle, Mattituck
Scale: 1" = 800'
5645 Aldrich Lane, Mattimck
Phase I ESA
NORT~I
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FIGURE 7
5645 Aldrich Lane, Mattimck
Ph~e i EsA
WATER T~LE MAP
53325-
.~ ~51582.N ~5333~ ~
51589 .~ ~ /
L ~'L~', ,~.,''
¢44298 ~'~ ,['
~ 4653~' /
i L¢.ONIC
BAY
Source: SCDHS Water Table Contour Map, 1999
Scale: l" = 8,000'
NORTH
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FIGURE 8
FRESHWATER WETLANDS MAP
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5645 Aldrich Lane, Matfltuck
Phase I ESA
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Source: NYSDEC Freshwater Wetlands Map, Mattituck
Scale: t" = 1,000'
NORI~t
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FIGURE 9
WATER MAIN DISTRIBUTION MAP
Source: SCWA Distribution Maps, 2005
Scale: Not to Scale
5645 Aldrich Lane~ Mattituck
L AL/~EL ~
NORTH
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OVERVIEW MAP - 1608761.2s
Target Property
ISites at elevations higher than
or equal to the target property
Sites at elevations lower than
the target property
M
anufactured GasPlants
National Priority List Sites
] Landfill Sites
Indian Reservations BIA
Oil & Gas pipelines
[] 100-year flood zone
~ 500-year flood zone
] Federal Wetlands
[] State Wetlands
~ept Defense Sites
~-E NAME: 5645 Aldrich Lane
5645
ADDRESS: Aldrich Lane
Laurel NY 11948
I~T/LONG: 40,9807 / 72,5746
This report includes Interactive Map Layers to
display and/or hide map information. The
legend includes onJy those icons for the
default map view,
CLIENT: Nelson, Pope & Voorhis LLC
CONTACT: Martssa Da Breo
INQUIRY#: 1608761,2s
DATE: February 07, 2006
DETAIL MAP - 1608761.2s
'~r Target Property
Situs at elevations higher than
or equal to the target property
Sites at elevations lower than
the target property
IManufactured GssPlants
Sensitive Receptors
~ N ational Priority IJst Sitas
~ _Landfill Sites
i~ept. Defense Sites
~rrE NAME: 5645 Aldrich Lane
ADDRESS: 5645 Aldrich Lane
Laurel NY 11948
iT/LONG: 40,9807 / 72.5746
Indian Reservations BIA
;~j' Oil & Gas pipelines
[] t 00-year flood zone
[] 500-year flood zene
[] Federal Wetlands
] State WetJands
This repod includes Interactive Map Layers to
display and/or hide map information. The
legend includes only those icons for the
default map view.
CLIENT: Nelson, Pope & Voorhis LLC
CONTACT: Marissa Da Breo
INQUIRY#: 1608761.2s
DATE: February 07, 2006
SSURGO SOIL MAP - 1608761.2s
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iTarget Property
· SSURGO Soil
Water
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5645 Aldrich Lane CLIENT: Nelson, Pope & Voorhis LLC
5645 Aldrich !..~ne CONTACT: Marissa Da Breo
Laurel NY 11948 INQUIRY #: 1608761.2s
40.9807172.5746 DATE: February 07, 2006
PHYSICAL SETTING SOURCE MAP - 1608761.2s
County Boundary
Major Roads
Contour Lines
Earthquake epicenter, Richter S or greater
Water Wells
Public Water Supply Wells
Cluster of Multipte I=ons
DITE NAME: 5645 Aldrich Lane
DRESS: 5645 Aldrich Lane
Laurel NY 11948
~.AT/LONG: 40.9807 / 72.5746
0 114 1t2
I '
Groundwater Flow Direction
Indeterminate Groundwater Flow at Location
Groundwater Flow Vsries et Location
Closest Hydrogeological Dam
CLIENT: Nelson, Pope & Voorhis LLC
CONTACT: Marlssa Da Breo
INQUIRY#: 1608761.2s
DATE: February 07, 2006
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LAND PRESERVATION COMMITTEE MEETING
Minutes of Regular Meeting held
Tuesday, September 6, 2005
Members Present:
Members Absent:
Also present:
Ray Blum, Chairman
Ray Huntington
John Sepenoski (7:12 p.m.)
Craig Arm
Fred Lee
Michelle Zaloom, Eric Keil
Melissa Spiro, Land Preservation Coordinator
Melanie Doroski, Land Preservation Secretary
Bill Edwards, Town Board Liaison
Tim Caufield, Peconic Land Trust Vice President (7:18 p.m.)
PETER HARBES PROPERTY (EWH Limited Liability Co)
SCTM #: 1000-120-3-11.12
Location: 5645 Aldrich Lane, Mattituck
Total Acreage: 39.40 acres
PDR Acreage: +35.3
Zoned: A-C
FWet: 3.37 acres
CPF: Yes
Reviewed status.
This property is an operating greenhouse/nursery. Melissa Spiro met with
landowner several times while owner undergoing site plan approval for ag
structure with the Planning Department. Site plan approval has now been
granted. Landowner's original intent was to create some residential lots but he
has now decided to explore the option to sell his development rights to the Town
without doing subdivision. Landowner has applied to County for PDR and the
County commissioned an appraisal on this property and made an offer to the
landowner; however, he would rather work with the Town rather than the County.
The Town received a grant from NYS and this property is eligible for grant. He
has presented a new plan to Melissa Spiro in which no residential lots would be
created, and he would request a reserve area of approximately 4 acres
surrounding the existing office/nursery operations building. Future greenhouses
may be added to those already existing on the properly and would be located
within the development rights easement. If acceptable, landowner would like to
ctose as soon as possible. LPC members looked favorably upon the project.
MOTION made by Ray Blum, seconded by Craig Arm, to direct Melissa Spiro to
commission an appraisal, or contact the Suffolk County Division of Real Estate
for the purpose of obtaining information from their appraisal, and updating same.
Motion carried 5/0.
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ELIZABETH NEVILLE
TOWN CLERK
REGISTRAR OF VITAL STATISTICS
MARRIAGE OFFICER
RECORDS MANAGEMENT OFFICER
FREEDOM OF INFORMATION OFFICER
Town Hall, 53095 Main Road
PO Box 1179
Southold, NY 11971
Fax (631) 765-6145
Telephone: (631) 765 - 1800
southoldtown.northfork.net
RESOLUTION # 2006-205
Resolution ID: 1588
Meeting: 02/14/06 07:30 PM
Department: Land Preservation
Category: Misc. Public Hearing
THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2006-205 WAS ADOPTED AT
THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON FEBRUARY 14, 2006:
RESOLVED that pursuant to the provisions of Chapter 25 (Agricultural Lands) and Chapter 6 (2% Community
Preservation Fund) of the Town Code, the Town Board of the Town of Sonthold hereby sets Tuesday,
February 28~ 2006, at 5:00 p.m., Southold Town Hall, 53095 Main Road, Southold, New York as the time
and place for a public hearing for the purchase of a development rights easement on a portion of the
property owned by EWH, LLC (Peter Harbes and Rita Harbes) Said property is identified as part of
SCTM #1000-120-3-11.12. The address is 5645 Aldrich Lane, Mattituck, New York. The property is located
on the westerly side of Aldrich Lane, approximately 1,831 feet southerly from the intersection of Sound Avenue
and Aldrich Lane in Mattituck in thc A-C zoning district. The proposed acquisition is for a development rights
easement of approximately 34.5 acres on thc 39.35 acre parcel.
The exact area of the purchase is subject to a Town provided survey acceptable to the Land Preservation
Committee. The purchase price is $55,000 (fifty-five thousand dollars) per buildable acre.
The Town is eligible for an awarded grant from the New York State Department of Agriculture for partial
purchase of this property and part of the purchase price may be reimbursed from that agency.
The property is listed on the Town's Community Preservation Project Plan as property that should be preserved
due to its agricultural value; and
FURTHER NOTICE is hereby given that a more detailed description of the above mentioned parcel of land is
on file in Land Preservation Department, Southold Town Hall Annex, 54375 Route 25, Southold, New York,
and may be examined by any interested person during business hours.
Elizabeth A. Neville
Southold Town Clerk
LEGAL NOTICE
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN that pursuant to the provisions of Chapter 25
(Agricultural Lands) and Chapter 6 (2% Community Preservation Fund) of the Town
Code, the Town Board of the Town of Southold hereby sets Tuesda¥~ February 28~
2006~ at 5:00 p.m. Southold Town Hall~ 53095 Main Road~ Southold~ New York
as the time and place for a public hearing for the purchase of a development
rights easement on a portion of the property owned by EWH~ LLC (Peter
Harbes and Rita Harbes) Said property is identified as part of SCTM #1000-120-3-
11.12. The address is 5645 Aldrich Lane, Mattituck, New York. The property is
located on the westerly side of Aldrich Lane, approximately 1,831 feet southerly f~om
the intersection of Sound Avenue and Aldrich Lane in Mattituck in the A-C zoning
district. The proposed acquisition is for a development rights easement of
approximately 34.5 acres on the 39.35 acre parcel.
The exact area of the purchase is subject to a Town provided survey acceptable to the
Land Preservation Committee. The purchase price is $55,000 (fifty-five thousand
dollars) per buildable acre.
The Town is eligible for an awarded grant from the New York State Department of
Agriculture for partial purchase of this property and part of the purchase price maybe
reimbursed from that agency.
The property is listed on the Town's Community Preservation Project Plan as
property that should be preserved due to its agricultural value; and
FURTHER NOTICE is hereby given that a more detailed description of the above
mentioned parcel of land is on file in Land Preservation Department, Southold Town
Hall Annex, 54375 Route 25, Southold, New York, and may be examined by any
interested person during business hours.
Dated: February 14, 2006 BY ORDER OF THE TOWN BOARD
OF THE TOWN OF SOUTHOLD
Elizabeth Neville
Town Clerk
PLEASE PUBLISH ON FEBRUARY 23~ 2006~ AND FORWARD ONE (1)
AFFIDAVIT OF PUBLICATION TO ELIZABETH NEVILLE, TOWN CLERK,
TOWN HALL, PO BOX 1179, SOUTHOLD, NY 11971.
Copies to the following:
The Suffolk Times Town Board Members Town Attorney
Land Preservation Town Clerk's Bulletin Board
SOUTHOLD TOWN BOARD
PUBLIC HEARING
February 28, 2006
5:00 PM
COUNCILMAN WICKHAM: NOTICE IS HEREBY GIVEN that pursuant to the
provisions of Chapter 25 (Agricultural Lands) and Chapter 6 (2% Community
Preservation Fund) of the Town Code, the Town Board of the Town of Southold hereby
sets Tuesday~ February 28~ 2006~ at 5:00 p.m. Southold Town Hall~ 53095 Main
Road~ Southold~ New York as the time and place for a public hearing for the
purchase of a development rights easement on a portion of the propert3,.owned by
EWH~ LLC {Peter Harbes and Rita Harbes) Said property is identified as part of
SCTM #1000-120-3-11.12. The address is 5645 Aldrich Lane, Mattituck, New York.
The property is located on the westerly side of Aldrich Lane, approximately 1,831 feet
southerly from the intersection of Sound Avenue and Aldrich Lane in Mattituck in the A-
C zoning district. The proposed acquisition is for a development rights easement of
approximately 34.5 acres on the 39.35 acre parcel.
The exact area of the purchase is subject to a Town provided survey acceptable to the
Land Preservation Committee. The purchase price is $55,000 (fifty-five thousand dollars)
per buildable acre.
The Town is eligible for an awarded grant from the New York State Department of
Agriculture for partial purchase of this property and part of the purchase price may be
reimbursed from that agency.
The property is listed on the Town's Community Preservation Project Plan as property
that should be preserved due to its agricultural value; and
FURTHER NOTICE is hereby given that a more detailed description of the above
mentioned parcel of land is on file in Land Preservation Department, Southold Town Hall
Annex, 54375 Route 25, Southold, New York, and may be examined by any interested
person during business hours.
I have a note that that this has been posted on the Town Clerk's bulletin board outside, it
has appeared as a legal in our local newspaper and I have beibre me a memo dated
February 27th from Mark Terry regarding the consistency with our LWRP and the final
sentence is based upon the information provided on the LWRP consistency assessment
form, 'as well as records available to me, it is my recommendation that the proposed
action is consistent with the policy standards and therefore is consistent with the LWRP'
and those are the only communications we have on this one.
SUPERVISOR RUSSELL: Would anybody like to address the Town Board on purchase
of the development rights of the Harbes fame?
JOAN EGAN: Joan Egan, East Marion. The only thing, I am all for it being kept
agriculture. The Town wants to purchase it for their own. I have always, always worried
that the Town is acquiring too much in their name and I don't think it is written in
indelible ink that they can't do something else with it or sell it at another time. Isn't that
so?
SUPERVISOR RUSSELL: No, it is written in very delible ink. The fact that once you
cleanse the property from its development rights by deed and by every other document
available, you cannot, the family retains the fee ownership to the underlying title of the
farm and they can farm it for as long as, for generations hopefully to come but no, there
can't be a reintroduction of building fights on that land.
MS. EGAN: It can't change? Once it will remain agriculture?
SUPERVISOR RUSSELL: In perpetuity.
MS. EGAN: Good. Thank you.
SUPERVISOR RUSSELL: Anybody like to comment? Melissa?
MELISSA SPIRO, LAND PRESERVATION COORDiNATOR: Melissa Spiro, Land
Preservation Coordinator. As noted, this hearing is for the Town to purchase a
developments rights easement on over 34 acres on a 39 acre farm. The farm is located off
Aldrich Lane and it borders on Riverhead Town on the west side. The east side of
Aldrich Lane starts a preservation that we have been calling the Laurel Lake area, within
which there is over 500 acres that have been preserved already. The Harbes family
members own active farmland to the north of this parcel and also on the north side of
Sound Avenue, which is further to the north 0f this parcel. Peter Harbes recently moved
his perennial nursery to this property, he went through the site plan process and has
constructed an agricultural building and an access way to that agricultural-business area
that will be left out of the easement. When Peter first thought about offering a
developments rights easement to the Town, he proposed creating several residential lots
in conjunction with the development rights easement. After thinking about it for some
time, Peter decided that this wasn't really the right place to construct houses. He didn't
want to see houses on his farmland and he decided to proceed with including all but five
acres within the development rights easement. The development rights easement itself
includes over 87% of the property. Purchase price, as mentioned, is $55,000 an acre,
which totals just under $1,900,000. The property is on an awarded state grant and we
expect to receive $1,200,000 towards this purchase back from the state. The property is
within the Town's special groundwater, it is on our Community Preservation Plan, it is
active farmland. All good reasons to preserve this farm. I am happy to have had the
opportunity to work with another member of the Harbes farm. We worked with Ed
Harbes a few years ago and I thank him and his fainily for offering the development
rights on this property. Both the Committee and I recommend that we proceed with the
resolution to purchase this development rights easement on this piece of farmland. And it
is expected because the survey is already done for this propcrty, that we will be in a
position to close probably in the next few weeks on this and we will add it to list of
preserved farms. Thanks.
SUPERVISOR RUSSELL: Thanks. Would anybody like to comment on this? (No
response) Any Town Board members like to speak on this issue? (No response) Move
to close the hearing?
Elizabeth A. Neville
Southold Town Clerk
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ELIZABETH NEVILLE
TOWN CLERK
REGISTRAR OF VITAL STATISTICS
MARRIAGE OFFICER
RECORDS MANAGEMENT OFFICER
FREEDOM OF INFORMATION OFFICER
Town Hall, 53095 Main Road
PO Box 1179
Southold, NY 11971
Fax (631) 765-6145
Telephone: (631) 765 - 1800
southoldtown.nortlffork.net
RESOLUTION # 2006-247
Resolution ID: 1619
Meeting: 02/28/06 04:30 PM
Department: Land Preservation
Category: Seqra
THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2006-247 WAS ADOPTED AT
THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON FEBRUARY 28, 2006:
WHEREAS, the Town Board of the Town of Southold wishes to purchase a development rights easement on a
certain parcel of property owned EWH, LLC (Peter Harbes) pursuant to the provisions of Chapter 6 and Chapter
25 of the Code of thc Town of Southold. Said property is identified as part of SCTM #1000-120~3-11.12. The
address is 5645 Aldrich Lane, Mattituck, New York, and is located on the westerly side of Aldrich Lane,
approximately 1,831 feet southerly from thc intersection of Sound Avenue and Aldrich Lane in Mattituck in the
A-C zoning district. The proposed acquisition is for a development rights easement of approximately 34.5 acres
(subject to survey) on the 39.35 acre parcel. The exact area of the development rights easement is subject to a
Town-provided survey acceptable to thc Land Preservation Committee. The purchase price for thc easement is
$55,000 (fifty-five thousand dollars) per buildable acre. The property is eligible for an awarded grant from the
New York State Department of Agriculture for partial purchase of this property and part of the purchase price
may be reimbursed from that agency; now, therefore, be it
RESOLVED by the Town Board of the Town of Southold that this action be classified as an Unlisted Action
pursuant to the SEQRA Rules and Regulations, 6NYCRR 617.1 et. Seq.; be it further
RESOLVED by the Town Board of the Town of Southold that the Town of Southold is the only involved
agency pursuant to SEQRA Rules and Regulations; be it further
RESOLVED by the Town Board of the Town of Southold that the Short Environmental Form prepared for this
project is accepted and attached hereto; and, be it further
RESOLVED that the Town Board of the Town of Southold hereby finds no significant impact on the
environment and declares a negative declaration pursuant to SEQRA Rules and Regulations for this
action.
Elizabeth A. Neville
Southold Town Clerk
Page 2
617.20
Appendix C
State Environmental Quality Review
SHORT ENVgRONHENTAL ASSESSHENT FORH
For UNLZSTED AC1/ONS Only
PART Z-PRO.1ECT ZNFORt4AT/ON (To be completed by Applicant OR Project) Page 1. of 2
1. APPLTCANT/SPONSOR: So.thold Town Board i 2. PROJECT NAH~i~.~ ~ ~ ,%~
3' PRO3ECT LOCAT/ON: '
4. PRECISE LOCATION: (Skreet address and road intersection% prominent landmarks, ere, or provide map)
5. ES PROPOSED ACT/ON:
~ Hew [] Expansion [] Hodificaflon
6. DESCRIBE PROJECT BRIEFLY.'
7. AMOUNT_OF LAND AFFECTED:
INITALLY '~.¢~ acres ULTIMATELY ._~ acres
8, IN~LL PROPOSED ACTION COHPLY WITH EX/STING ZONING OR OTHER EX~S'r'[NG LAND USE RESTRICI~ONS?
~ Yes [] No /FNo, descT/be bdeffy
g. WHAT IS PRESENT LAND USE ZN VJC/NETY OF PRO3ECTT
[] Residential ~ Commercial ~ Industrial '~ Agriculture
Park/Forest/Open space Other
10. DOES ACTION ENVOLVE A PERMI-r APPROVAL, OR FUNDZNG, NOW OR ULT~HATELY FROH ANY OTHER GOVERNMENTAL
AGENCY (FEDERAL~ STATE OR LOCAL)?
11. DOES ANY ASPECT OF THE ACT[ON HAVE A CURRENTLY VALID PERMIT OR APPROVAL?
r~ Yes ~' No /£,v~$, ~~st agency~$J and perm/~/app~ova/$
1.2. AS RESULT OF PROPOSED ACTION WILL EX~STTNG PERMIT/APPROVAL REQUIRE MOD~FICATJ[ON?
CERTIFY THAT THE INFORMATION PROVIDED ABOVE IS TRUE TO THE BEST OF MY KNOWLEDGE
iSignature ,~ ~ I
If the action is in the Coastal Area, and you are a state agency, complete the Coastal Assessment Form before
proceeding with this assessment
PART n*-ENV~RONHENTAL ASSESSMENT (To be completed by Agency) Page 2 of 2
A. DOES AC'I'~ON EXCEED ANY TYPE ! THRESHOLD Y.N 6 NYCRR, PART 617.47
[] Yes~ No ~f ye~ coordina~ the rev/ew proce.~ and use the full EAF
B. WJ[LL AC'I'JON RECEIVE COORDTNATED REVIEW A~ PROVIDED FOR UNLZS'IED AC'FJONS IR 6 NYCRR~ PART 617.67
[] Yesj~ No ]f no, a negatlYe dedarat/on may be Suspended by another/nvolved agency
C. COULD ACTION RESULT ZN ANY ADVEREE EFFECTS ASS][OCJATED WTI'H THE FOLLOWING:
(Answers may be handwritten, if legible)
C).. Existing air quality, surfaco or groundwater quality or quantity, noise levels, existing traffic patterns selid waste production or
disposal, potential for erosion, drainage or flooding problem? Explain briefly:
C2. Aesthetic, agdcuKural, archaeological, historic or other natural or cultural resources or community or neighborhood character~
Explain briefly:
C3. Vegetation or fauna fishes shellfish, or wildlifo species significant habitats or threatened or endangered spedes? Explain bdefly'
Cl. A community's existing plans es geals as offidally adopted, or change in use or intensity of Use of land or other natural resources?
Expl~bdefly:
C5. Growth, subsequent development, or related activities likely to be induced by the proposed action? flxplain briefly:
C6. ~j~g term, short term, cumulative, or other effects not identified in CJ.-CS? Explain briefly:
C7. Other impacts (including changes in use of either quantity of type of energy)? Explain briefly:
D. WILL THE PROJECT HAVE AN TMPACT ON THE ENVIRONMENTAL CHARACTERIcs THAT CAUSED THE ESTABLlrSHMENT OF A
CEA?
E, [S THERE~ OR IlS THERE LTKELY TO BE, CONTROVERSY RELATED TO POTENTLAL ADVERSE ENVIRONMENTAL IMPACTS?
PART Z~[- DETERMINAI'[ON OF SZGNZF~CANCE (To be completed by Agency)
INSTRUCTIONS: For each adverse effect identified above, detertnine whether it is substantial, large, or otherwise significant. Each effect should
be assessed in connection with i~s (a) setting (i.e, urban or rural); probability of occurring; (c) duration; (dO irreversibility; (e) geographic scope;
and (f) rc~gnitude. If necossa~, add attachments or reference supporting materials. Ensure that explanations contain suffident detail to show
that all relevant adverse impacts have been identified and adequately addressed, if question D of part [! was checked yes, the determination and
significance must evaluate the potential impact of the proposed action on the environmental characteristics of the CEA.
Check this box if you have identified one or more potentially large or significant adverse impacts, which may occur. Then
proceed direddy to the FULL ENV][RONHETNAL ASSESSHENT FORH and/or prepare a positive declaration.
Check this box if you have determined, based on the information and analysis above and any supporting documentation,
that the proposed action WILL NOT result in any significant adverse envirOnmental impacts AND provide on attachments
as necessa~/, the reasons supporting this determination; ,~
~ Name of Loan Agent/ ,
Print of type Name/of~Responsibie~i3fficer in.Le~d Agency Title of Re~4;lpnsible Officer
Signaly~r~of Responsible Officer in Lead Agency Signa'ture of prepare(if diffe~nt from-of responsible officer)
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ELIZABETH NEVILLE
TOWN CLERK
REGISTRAR OF VITAL STATISTICS
MARRIAGE OFFICER
RECORDS MANAGEMENT OFFICER
FREEDOM OF INFORMATION OFFICER
Town Hall, 53095 Main Road
PO Box 1179
Southold, NY 11971
Fax (631 ) 765-6145
Telephone: (631) 765 - 1800
southoldtown.northfork.net
RESOLUTION # 2006-258
Resolution ID: 1620
Meeting: 02/28/06 04:30 PM
Department: Land Preservation
Category: Contracts, Lease & Agreements
THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2006-258 WAS ADOPTED AT
THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON FEBRUARY 28, 2006:
WHEREAS, the Town Board of the Town of Southold held a public hearing on the question of the purchase of
a development rights easement on a certain parcel of property owned by EWH, LLC (Peter Harbes), on the 28th
day of February, 2006, pursuant to the provisions of Chapter 25 (Agricultural Lands Preservation) and Chapter
6 (Community Preservation Fund) of the Town Code, at which time all interested parties were given the
opporttmity to be heard; and
WItEREAS, said property is identified as part of SCTM #1000-120-3-11.12. The address is 5645 Aldrich
Lane, Mattituck, New York, and is located on the westerly side of Aldrich Lane, approximately 1,831 feet
southerly from the intersection of Sound Avenue and Aldrich Lane in Mattituck in the A-C zoning district; and
WHEREAS, the development rights easement comprises approximately 34.5 acres (subject to survey) on the
39.35 acre parcel. The exact area of the development rights easement is subject to a Town-provided survey
acceptable to the Land Preservation Conunittee; and
WHEREAS, the purchase price for the easement is $55,000 (fifty-five thousand dollars) per buildable acre; and
WHEREAS, the Town is eligible for an awarded grant from the New York State Department of Agriculture for
partial purchase of this property and part of the purchase price may be reimbursed from that agency; and
WHEREAS, the property is listed on the Town's Community Preservation Project Plan as property that should
be preserved due to its agricultural value; and
WltEREAS, the property is in the vicinity of other lands preserved by the Town and/or the County; and
WItEREAS, the purchase of the development rights on this property is in conformance with the provisions of
Chapter 6 (2% Community Preservation Fund) and Chapter 25 (Agricultural Lands Preservation) of the Town
Code, and
WHEREAS, the proposed action has been reviewed pursuant to Chapter 95 of the Town Code and Local
Waterfront Revitalization Program (LWRP) and the LWRP Coordinator has determined that this action is
consistent with the LWRP; and
WHEREAS, the Town Board deems it in the best public interest that the Town of Southold purchase the
development rights on this agricultural land; now, therefore, be it
RESOLVED that the Town Board of the Town of Southold hereby elects to purchase a development rights
easement on agricultural land owned by EWIt~ LLC (Peter Harbes)~ pursuant to the provisions of
Chapter 6 and Chapter 25 of the Code of the Town of Southold. Said property is identified as part of SCTM
#1000-120-3-11.12. The address is 5645 Aldrich Lanes Mattituck, New York, and is located on the westerly
side of Aldrich Lane approximately 1,831 feet southerly of the intersection of Sound Avenue and Aldrich Lane
in Mattituck in the A-C zoning district. The development rights easement comprises approximately 34.5 acres
(subject to survey) on the 39.35 acre parcel. The exact area of the development rights easement is subject to a
Town-provided survey acceptable to the Land Preservation Committee. The purchase price for the easement is
$55,000 (fifty-five thousand dollars) per buildable acre. The Town is eligible for an awarded grant from the
New York State Department of Agriculture for partial purchase of this property and part of the purchase price
may be reimbursed from that agency.
Elizabeth A. Neville
Southold Town Clerk
Page 2
PLANNING BOARD MEMBERS
JERILYN B. WOODHOUSE
Chair
KENNETH L. EDWARDS
MARTIN H. SIDOR
GEORGE D. SOLOMON
JOSEPH L. TOWNSEND
M~HJNG ADDRESS:
P.O. Box 1179
Southold, NY 11971
OFI~ICE LOCATION:
Town Hall Annex
54375 State Route 25
(cor. Main Rd. & Youngs Ave.)
Southold, NY
Telephone: 631 765-1938
Fax: 631 765-3136
PLANNING BOARD OFFICE
TOWN OF SOUTHOLD
To:
Supervisor Scott Russell
Members of the Town Board
From: Mark Terry, Senior Environmental Planner
LWRP Coordinator
Date: February 27, 2006
Re:
Purchase of a Development Rights Easement Peter Harbes property (EWH,LLC)
SCTM #1000-120-3-11.12
Town Board of the Town of Southold elects to purchase a development rights easement on
agricultural land owned by EWH, LLC (Peter Harbes and Rita Harbes), pursuant to the
provisions of Chapter 6 and Chapter 25 of the Code of the Town of Southold. The development
rights easement comprises approximately 34.5 acres (subject to survey) on the 39.35 acre parcel.
The proposed action has been reviewed to Chapter 95, Waterfront Consistency Review of the
Town of Southold Town Code and the Local Waterfront Revitalization Program (LWRP) Policy
Standards. Based upon the information provided on the LWRP Consistency Assessment Form
submitted to this department, as well as the records available to me, it is my recommendation
that the proposed action is CONSISTENT with the Policy Standards and therefore is
CONSISTENT with the LWRP.
Please contact me at (631) 765-1938 if you have any questions regarding the above.
Cc: Melissa Spiro, Land Preservation Coordinator
FEB 2 8 2006
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CLOSING STATEMENT
EWH, LLC (Peter Harbes)
to TOWN OF SOUTHOLD
Development Rights Easement - 34.5 acres
34.5 buildable acres @ $55,000/acre
Premises: 5645 Aldrich Lane, Mattituck
Total Parcel Acreage - 39.35 acres
SCTM #1000-120-3-p/o 11.12
Closing held on Friday, March 10, 2006 at 1:00 p.m.,
Land Preservation Department, Southold Town Hall Annex
Purchase Price of $1,897,500.00 disbursed as follows:
Payable to Peter Harbes
(3/10/06)
$ 1,897,500.00
Expenses of Closing:
Appraisal
Payable to Given Associates, LLC
(10/25/05)
$ 1,900.00
Survey
Payable to Stanley J. Isaksen, Jr.
(2/28/06)
$ 950.00
Environmental Report
Payable to Nelson, Pope & Voorhis, LLC
(5/9/06)
$ 1,300.00
Title Report
Payable to Stewart Title Insurance Company
(3/10/06)
Fee Insurance $ 7,728.00
Recording Easement $ 250.00
Certified Easement $ 50.00
Recording C&R's $ 165.00
Recording 2 Subordination $ 170.00
Agreements
8,363.00*
*actual check issued = $8,429.00
overpayment - (title company to refund Town = $66.00)
Title Closer Attendance Fee
Payable to Livia Cooper
(3/10/06)
$ 100.00
Those present at Closing:
Scoff A. Russell
Lisa Clare Kombrink, Esq.
Peter Harbes
Ellen Harbes
Patricia C. Moore, Esq
Livia Cooper
Melissa Spiro
Melanie Doroski
Southold Town Supervisor
Attorney for Town of Southold
Seller
Seller's wife
Attorney for Seller
Title Company Closer
Land Preservation Coordinator
Land Preservation Administrative Asst
-GIVEN
ASSOCIATES
GIVEN ASSOCIATES, LLC
P.O. Box 5305 · 548 Route 111 · Hauppauge, NY. 11788-0306
(631) 360-3474
FAX 360-3622
October 11, 2005
Melissa Spire, Land Preservation Coordinator
Town of Southold
Dept. Of Land Preservation
Town Hall Annex
54375 State Route 25
P.O. Box 1179
Southold, New York 11971
Appraisal of Real Property of EWH, LLC
Located Westerly Side of Aldrich Lane, Laurel, NY
S.C.T.M. #1000-120-3-11.12
OCT 18 2005
DEPT OF lAND
PRESERVATION
File# 2005311
$1,900.00
STANLEY J. SAKSEN,
PROFESSIONAL LAND SURVEYOR
1'.O. Box 294 Topagraphic Title
New Suffolk, N.y. 11956 Surveys Surveys
Telephone & Fax
631-734-5835
Ms, Melissa Spire
Land Preservation Unit
Town of Sotahold
P.O. Box 1179
Southold, N.Y. 11971
Dear Ms. SpJro:
Enclosed is a bill for professional services concerning a propelty survey to include
location and mapping of areas to the acquired by the Town of Southold for the purchase
of development rigJlts.
The map, as prepared by me, is umler the name E. W. H. Limited Liability Company, and
is under the management and operational control of David Rose Perennials, ~s operated
by Peter Harbes. As you are aware, I have prepared a prope~y survey for him prior to the
interest bf the Town to purchase development rights.
Fee for defining the limits of the reserved areas as agreed to by Mr. Harbes and yourself,
to include field work and mapping of this information:
Please remit...$950.00 at this time,
CC: file
03CI254PG'- I
Very ?U~y yom,
vetson, Hope & Voorhis, LLC
572 Walt Whig.man Road Phone: 631--427-5665
Melville NY 11747 Fax: 631.-427-5620
Invoice
Property: 06037 Project:
5645 Aldrich Lane, Laurel
Manager: McGinn, Steven
VA02031
To:
Town of Southold Dcm of Land Preserv
Town Hall
53095 State Rt 25, PO Box 1179
Southold NY 11971
Attention: Melanie Doroski
Invoice #: 4006
Invoice Date: April 21, 2006
/MAKE CHECKS PAYABLE TO NELSON POPE & VOORHIS Invoice Amount $1,300. O0
Contract Item #1: Prepare Phase I Environmental
Site Assessment
Work Performed: 2/7 thru 3/8/06
Contract Amount: $1,300.00
· Percent Complete: 100.00%
Fee Earned: $1,300.00
Prior Fee Billings: $0.00
Current Fee Total:
$1,300.00
*** Total Project Invoice Amount
$1,300.00
25 Baylis Road, Suite 201
Melville, NY 11747
631-501-9615 fax: 63%501-9624
www.st ewar ttiflem elville.co m
755 East Main Street
Riverhead, NY 11901
631-727-4470 fax: 631-501-9623
NYSE: STC
ESTIMA TED INVOICE
TITLE NO,: ST-S~330 DATE March 8, 2006 /.~ ]
APPLICANT: Town of Southold - Land Preservation CLOSING DATE: ~~
PREMISES: 5645 Aldrich Lane,
Martituck, New York
District: 1000 Section: 120.00 Block: 03.00 Lot: 011.012
PURCHASER/BORROWER: Town of Southold Reference:
Fee Insurance $1~897,500.00 $7r728.00
Mortgage Insurance
Mortgage Insurance
Misc.
Departmental Searches (Total)
Bankruptcies -
3-Day Rescission
UCC-I Search County/State /
Shipping Charges ENDORSEMENTS
New Survey By: A) Envmtl (8.1) (429) - $25.00
Survey Locate/lnspectYService Charge \ B) Waiver (431 ) - $25.00
Endorsements (see schedule) C) VRE (420) - $25.00
Endorsement Total: D) Residential (436) - $25.00
Survey Endorsement * E) Revolving Credit (406) - *
Market Value Rider **
~, F) Survey (402) - *
RECORDING FEE(s):Deed,(s): '~: G) Alta9(401)- *
~..~('~rvfi:g~I- leo O~r(~ tI)~ ~Q~ ~'0~ LO H) Market Value Rider (408) - **
]1/2 ff ** 10% of Straight Owner's Premium
VO0~dl~rl ~[ ~' ~'t'~~, [ ~) *lO%ofStraightMortgagePremium
NYS Transfer Tax (usually pa~ by seller) I
NYC RPT Pecoinc Bay Tax DEPARTMENTAL FEES (per lot)
Mortgage Tax - (Mortgagor) a) C/O -
(Mortgagee) b) Street -
Check Exchange ($25.00) c) H and B-
Other Exchange d) E~R -
ESCROW - To Hold e) Fire Search -
- To Pa)' f) Full Residential -
Escrow Service Charge ($50.00) '~ " g) Full Conunercial -
TOTAL: ~,~'~ C 3 ...... Closer MUST Verify Depts.
Subject to change/verification at closi~
f
RECEIPTS
DIRECT CHECKS: AMOUNT:
SOCIAL SECURITY NUMBERS: 0VIANDATORY):
STIC CI~ECKS: ' 'AMOUNT:
The recording/filing fees referenced on this invoice include Stewart Titles fees for processing the subject recordings/filings
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SUFFOLK COUNTY CLERK
RECORDS OFFICE
RECORDING PAGE
Ty~e of Instrument: DEEDS/DDD
Number of Pages: 22
Receipt Number = 06-0037019
TRANSFER TAX NUMBER~ 05-34561
District=
1000
Recorded=
At:
LIBER:
PAGE:
Section: Block:
120.00 03.00
EXAMINED AND CHARGED AS FOLLOWS
$1,897,500.00
Received the Following Fees For Above Instrument
Exempt
Page/Filing $66.00 NO Handling
COE $5.00 NO NYS SRCHG
EA-CTY $5.00 NO EA-STATE
TP-584 $5.00 NO Cert.Copies
RPT $30.00 NO SCTM
Transfer tax $0.00 NO Com/u. Pres
Fees Paid
TRANSFER TAX NUMBER:
05-34561
THIS PAGE IS A PART OF THE INSTRUMENT
THIS IS NOT A BILL
Judith A. Pascale
County Clerk, Suffolk County
04/12/2006
02:49:42 PM
D00012445
087
Lot:
011.014
Exempt
$5.00 NO
$15.00 NO
$75.00 NO
$14.30 NO
$0.00 NO
$0.00 NO
$220.30
DEPT. OF LAND
PRESERVATION
Deed/Mmtgagc hlshmncnt
Judith g. Rascal*,
CLERK OF
SUFFOLK EOUNTV
L 000012445
Recording / Fili.g Sthifip,~:
Reg, Copy
FEES
Real PlOl/erty Tax Service Agency Velificalk/n
06010732 zooo z2ooo 0300 ozzo~.4
Date
I, Bask Trix
2. Adllillonal '['ax
Sub Tolal
O~
Spec./Add.
TOT, MTG. TAX
Dual Town Dual Cotlniy__
.~] Satisfncllons/I)ischalges/ll. eleases last Properly Owners Mniling Address
ItECOIU) & RETUItN TO:
C(~,nmunity Preservation Fund
Improved
TD
TD
Su'ffollc County Recording & Endorsement Page
'tlfislmgefom~spartord~eatlach~d ~¢ed d (onSeP¢~
(SPECIFY T~E OF NSTRIJM~F)
- 5 V 0 SI IFFOI,I~'COUNTY, NEW YORK.
130×[iS 5 'Il IRU 9 MIJSF Bli TYPED OIL PRINTED IN BI.ACIC.. INK ONLY PRIOP~ TO RECOIq)I NG OR FII. ING,
DEED OF CONSERVATZON EASEMENT
THIS CONSERVATION EASENIEBT.~(~'E,~^~e~r'~,nt") is granted this
day of March, 2006, by EWH,UL~L~'~"~ant~r ) ~ng an address -
~ b-~~ .~om~'r~/FV~. Mattituck, New York 11952 to THE TOWN OF
SOUTHOLD ("Grantee"), a New York municipal corporation having an office
at 53095 Main Road, P.O. Box 1179, Southold, New York 11971.
WHEREAS:
A. Grantor is the owner of certain real property (the "Property")
consisting of 39.35 acres located at 5645 Aldrich Lane, Laurel, in the Town
of Southold, Suffolk County, New York, designated as SCTM# 1000-120-3-
11.12,a part of which (34.5 acres) is subject to this Deed of Conservation
Easement and more fully described in EXHIBTT A attached hereto and shown
on a survey dated August 22, 2003, and last revised March 2, 2006 prepared
by Stanley Isaksen, Jr.; and
B. Grantee is a municipal corporation and has the authority pursuant
to Section 247 of the General Municipal Law and Article 49, Title 3 of the
New York Environmental Conservation Law (the "ECL") to acquire
conservation easements.
C. The Property consists primarily of productive agricultural land. The
Property contains 25 acres of prime soils, 3.3 acres of woodlands and
wetlands and 10.7 acres of soils of statewide importance as defined by the
U.S. Department of Agriculture Natural Resources Conservation Service.
D. Article 14, Section 4 of the New York State Constitution states that
"the policy of this state shall be to conserve and protect its natural resources
and scenic beauty and encourage the development and improvement of its
agricultural lands for the production of food and other agricultural products;"
E. ~n Section 49-0301 of the ECL, the Legislature of the State of New
York found and declared that "in order to implement the state policy of
conserving, preserving and protecting its environmental assets and natural
and man-made resources, the preservation of open spaces, and the
preservation, development and improvement of agricultural and forest
lands..., is fundamental to the maintenance, enhancement and improvement
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of._balanced economic growth and the quality of life in all areas of the
state;"
F. The Property is located within Suffolk County's Agricultural District
#:1, created pursuant to Article 25AA of the New York State Agriculture and
Markets Law. In Section 300, it states: "It is hereby found and declared that
many of the agricultural lands in New York State are in jeopardy of being lost
for any agricultural purposes. When nonagricultural development extends
into farm areas, competition for limited resources results...It is therefore the
declared policy of the state to conserve, protect and encourage the
development and improvement of its agricultural land for production of food
and other agricultural products...It is the purpose of this article to provide a
locally-initiated mechanism for the protection and enhancement of New York
State's agricultural land as a viable segment of the local and state economies
and as an economic and environmental resource of major importance;"
G. Article 25-AAA, Section 321 of the Agriculture and Markets Law
states that "It is hereby found and declared that agricultural lands are
irreplaceable state assets. In an effort to maintain the economic viability,
and the environmental and landscape preservation values associated with
agriculture..." the Commissioner is authorized to administer programs to
assist counties in developing agricultural and farmland protection plans and
to assist both county and municipal governments in the implementation of
such plans. The Commissioner gives priority to projects that will preserve
viable agricultural land, are located in areas facing significant development
pressure and serve as a buffer for a significant natural public resource
containing important ecosystem or habitat characteristics;
H. The property is located within the Town of Southold, which has
adopted the Southold Town Farm and Farmland Protection Strategy, dated
January, 2000. The Plan recommends that the Town continue its efforts to
preserve land suitable for farming and ensure that farming remains an
important part of the local economy. The Plan also recommends that the
Town participate in partnership efforts with the Federal, State and CoUnty
governments and related grant programs in order to use the Town's limited
financial resources most effectively.
I. Grantor has received independent legal and financial advice
regarding this Easement to the extent that Grantor has deemed necessary.
Grantor freely signs this Easement in order to accomplish its conservation
purposes.
NOW, THEREFORE, in consideration of the foregoing, ONE MILLION-
2 of 20
EIGHT-HUNDRED-NINETY-SEVEN THOUSAND-FIVE HUNDRED Dollars
($1,897,500.00) and the mutual covenants, terms, conditions and restrictions
contained herein, the parties agree as follows:
1. Grant of Conservation Easement
Grantor hereby grants and conveys to Grantee, a Conservation
Easement (the "Easement"), an immediately vested interest in real property
defined by Article 49, Title 3 of the ECL of the nature and character described
herein, for the benefit of the general public, which Easement shall run with
and bind the Property in perpetuity. Grantor will neither perform, nor
knowingly allow others to perform, any act on or affecting the Property that is
inconsistent with the covenants contained herein. Grantor authorizes Grantee
to enforce these covenants in the manner described below.
2. Purpose
It is the primary purpose of this Easement to: a) enable the Property
to remain in agricultural or forestry use for current and future production of
food and fiber, and livestock and livestock products, by protecting in
perpetuity its agricultural and forestry values, use and utility, including its
prime, statewide important and unique agricultural soils; and b) prevent any
use of the Property that would significantly impair or interfere with its long-
term agricultural and forestry viability. It is the secondary purpose of this
Easement to conserve and protect the Property's open space resources, and
their associated unique and special natural features to the extent that such
protection does not conflict with the primary purpose of this Easement.
3. Implementation
This Easement shall be implemented by limiting and restricting the
development and use of the Property in accordance with its provisions. No
use of the property shall occur and no permanent or temporary structures or
other buildings or improvements shall hereafter be constructed, placed or
maintained on the Property, except as specifically provided herein. The
Property remains subject to all applicable local, state and federal laws and
regulations.
4. Definitions
As used in this Easement, the terms "Grantor" or "owner" include the
original Grantor, its heirs, successors and assigns, all future owners of any
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legal or equitable interest in all or any portion of the Property, and any party
entitled to the possession or use of all or any part thereof; and the term
"Grantee" includes the original Grantee(s) and its[their] successors and
assigns.
The term "Sound Agricultural Practices" is defined as those practices
necessary for on-farm production, preparation and marketing of agricultural
commodities, provided such practices are legal, necessary, do not cause bodily
harm or property damage off the farm, and achieve the intended results in a
reasonable and supportable way. If necessary, to determine if a practice is
"sound," Grantee or Grantor may request the New York State Department of
Agriculture and Markets to initiate a sound agricultural practice review
pursuant to Section 308 of the New York State Agriculture and Markets Law,
or any successor statute.
The term "Farm Labor Housing" means structures used to house
seasonal and/or full-time employees where such residences are provided by
the farm landowner and/or operator, the worker is an essential employee of
the farm landowner and/or operator employed in the operation of the farm
and the farm worker is not a partner or owner of the farm operation. For
instance, a mobile or manufactured home used as the primary residence of a
farm owner is not farm labor housing.
5. Reserved Rights Retained by Grantor
Notwithstanding any provisions of this Easement to the contrary,
Grantor reserves all customary rights and privileges of ownership, including
the right of exclusive use, possession and enjoyment of the Property, the
rights to sell, lease, and devise the Property, as well as any other rights
consistent with the Purpose set forth in Section 2 and not specifically
prohibited or limited by this Easement. Unless otherwise specified below,
nothing in this Easement shall require Grantor to take any action to restore
the condition of the Property after any Act of God. Nothing in this Easement
relieves Grantor of any obligation with respect to the Property or restriction on
the use of the Property imposed by law.
6. Access
Nothing contained in this Easement shall give or grant to the public a
right to enter upon or to use the Property or any portion thereof where no
such right existed in the public immediately prior to the execution of this
Easement.
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7. Right to Use Property for Rural and Agricultural Uses
Grantor has the right to produce crops, livestock and livestock
products and conduct farm operations as defined under Section 301 of the
New York State Agriculture and Markets Law ("Agriculture and Markets
Law"), or such successor law as is later promulgated, which includes but is
not limited to the right to establish, reestablish, maintain, and use cultivated
fields, orchards, pastures and woodlands. Said farming practices shall be
carried out in accordance with Sound Agricultural Practices as defined herein.
]~n addition, Grantor has the right to distribute farm products, subject to the
limitations set forth in this Easement, including Section 10 ("Construction of
Buildings and Other Improvements").
8. Right to Use the Property for Recreational Purposes
Grantor retains the right to use the Property for otherwise lawful
recreational uses, including, but not limited to, hunting, fishing, cross-
country skiing and snowmobiling, subject to the limitations set forth in this
Easement, including Section 10 ("Construction of Buildings and Other
Improvements").
9. Maintenance
Should the property cease to be used for agricultural purposes for
more than three (3) years, the agricultural fields containing prime, statewide
important and unique soils will be mowed at least triennially or otherwise
maintained in a condition which will prevent growth of woody vegetation that
would interfere with future agricultural use or which might result in
interference with drainage systems, or in reversion of significant portions of
the Property to regulated wetland status. Similarly, during prolonged
periods of disuse for agricultural purposes, artificial and natural d~ainage
systems must be maintained in a functional state by the Grantor. If Grantor
does not comply with this provision, Grantee shall have the right, but not the
obligation, to mow such fields, at Grantee's sole expense, if it so chooses.
:LO. Construction of Buildings and Other Zmprovements
Grantor may undertake construction, erection, installation, removal or
placement of buildings, structures, or other improvement to the Property
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only as provided in this Easement and set forth below.
:LO(a) Fences -~ Existing fences may be repaired, removed and replaced,
and new fences may be built on the Property for purposes of reasonable and
customary management of livestock and wildlife and to prevent trespassing on
the Property.
10(b) New Agricultural Structures and Improvements - Without
permission of Grantee, Grantor may construct new buildings, structures and
impervious improvements including asphalt and concrete roads and parking
areas on up to 5% of the Property to be used primarily for purposes related
to a "Farm Operation," as defined in New York State Agriculture and Markets
Law § 301 or any successor statute and for such other agricultural purposes
as (i) the production, storage or sale of farm products or by-products, (ii)
the storage of equipment used for agricultural production, (iii) the keeping of
livestock or other animals and (iv) farm labor housing.
Such new buildings, structures and impervious improvements shall not
include those used for the processing and packaging of farm products. Such
coverage limitations do not apply to permeable surfaces such as gravel roads
and parking areas, structures that protect soil and water resources, such as
manure storage areas, and structures and improvements lacking permanent
foundations where the land underneath is not covered by impervious surfaces.
Permission is required by Grantee for the construction of such buildings,
structures and improvements that would cover more than 5% of such area.
10(c) New Farm Labor Housing - Without permission of Grantee,
Grantor has the right to construct new dwellings or structures for Farm Labor
Housing as defined in Paragraph 4, together with new agricultural structures
and improvements permitted in Section 10(c) above, on up to 5% of the
property. With advance written permission of the Grantee, pursuant to
Section 18 (Permission), Grantor has the right to construct such Farm Labor
Housing within the remaining Property. The land on which these structures
stand shall not be subdivided.
10(d) New Recreational Structures and Improvements - Any one or more
new recreational improvements proposed for the Property that exceed an
aggregate footprint of 400 square feet may be located only with the advance
written permission of Grantee. Under no circumstances shall athletic fields, golf
courses or ranges, commercial airstrips, commercial helicopter pads or any
other similar recreational improvements that interfere with the Purpose of this
Easement, significantly disturb the farm soils, or otherwise adversely affect
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agricultural and forestry uses on a continuing basis be allowed on the Property.
10(e) Utility Services and Septic Systems -- Wires, lines, pipes, cables
or other facilities providing electrical, gas, water, sewer, communications, or
other utility services to the improvements permitted in this Easement may
be installed, maintained, repaired, removed, relocated and replaced, and
Grantor may grant easements over and under the Property for such
purposes. Septic or other underground sanitary systems serving the
improvements permitted herein may be installed, maintained, repaired or
improved. Services are limited to structures permitted on the Property
pursuant to Section 18 ("Permission").
10(f) Ancillary Improvements - Other improvements, including, but
not limited to facilities for the generation and transmission of electrical
power for agricultural production uses on the Property, such as windmills and
detached solar arrays may be built only with the permission of Grantee,
pursuant to Section 18 ("Permission").
11. Maintenance and Improvement of Water Sources
Grantor maintains the right to use, maintain, establish, construct, and
improve water sources, water courses and water bodies within the Property
for the uses permitted by this Easement, provided that Grantor does not
significantly impair or disturb the natural course of the surface water drainage
or runoff flowing over the Property. Grantor may alter the natural flow of
water over the Property in order to improve drainage of agricultural soils,
reduce soil erosion, provide irrigation for the Property or improve the
agricultural or forest management potential of the Property, provided such
alteration is consistent with Sound Agricultural Practices, the Purpose of this
Easement and is carried out in accordance with applicable State and federal
laws and regulations.
12. Water Rights
Grantor retains and reserves the right to use any appurtenant water
rights sufficient to maintain the agricultural productivity of the Property.
Grantor shall not transfer, encumber, lease, sell or otherwise sever such water
rights from title to the Property itself.
13. Subdivision
The Property may not be further subdivided pursuant to Town Law
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Sections 265, 276 or 277 or Section 335 of the Real Property Law, as they
may be amended, or any other applicable State or local law, except as
provided herein. "Subdivision" shall be limited to the division of the portion
of the Property from which the development rights are acquired into no more
than two farming parcels, each of which must be at least ten (:tO) acres in
size. Notwithstanding this provision, the underlying fee interest may be
divided by conveyance of parts thereof to heirs or next of kin by will or
operation of law.
14. Forest Management
Without prior written permission from Grantee, Grantor may clear
forested areas for conversion to farmland, may harvest wood for on-farm use
including heating or construction of buildings and improvements, and may
remove trees that are fallen, dead, diseased or dangerous, so long as it is
consistent with Sound Agricultural Practices.
Without prior written permission from Grantee, Grantor may commercially
harvest timber and other wood products and construct, maintain, remove, and
repair unpaved access roads and "staging areas" (those areas where logs are
temporarily stored for transport) necessary for such activities, in accordance
with generally-accepted forest best management practices (as outlined in a
forest management and harvest plan) that shall not result in significant
degradation of soil and water resources. Such commercial timber cutting shall
be carried out only in accordance with a forest management plan and harvest
plan prepared by a forester who is certified by the Society of American
Foresters or such successor organization as is later created, or a Cooperating
Consulting Forester with the New York State Department of Environmental
Conservation.
In order to facilitate the monitoring and stewardship of this Conservation
Easement, to ensure continuing communication between parties, Grantor shall
give Grantee, its successors or assigns, written notice thereof not less than
forty-five (45) days prior to the anticipated commencement of any commercial
timber harvest. Such written notice shall include submission of the current
forest management plan and harvest plan.
:IS. Excavation and removal of Materials; Mining
The excavating or filling of the Property, except as may be necessary
to construct and maintain permitted structures and improvements on the
Property, or in connection with necessary drainage and soil conservation
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programs, shall be prohibited, without the prior written consent of Grantee.
Mineral exploitation, and extraction by any method, surface or subsurface, is
prohibited. The removal of topsoil, sand, or other materials shall not take
place, nor shall the topography of the Property be changed except to
construct and maintain the permitted structures and improvements on the
Property and for farm operations, erosion control and soil management,
without the prior written consent of Grantee.
16. Road Construction
Grantor may construct roads for barnyards, farm roads, or other
improvements necessary to provide access to, and parking for, permitted
buildings or improvements, or to conduct other activities permitted by this
Easement, provided to the greatest extent practicable, impact to the prime,
statewide important and unique soils is minimized. No other portion of the
Property shall be paved or otherwise covered with concrete, asphalt, or any
other impervious paving material.
17. Dumping and Trash
The dumping, land filling, burial, application, injection, or accumulation
of any kind of garbage, trash or debris on the Property is prohibited, other
than agriculturally-related waste or biodegradable material in accordance
with Sound Agricultural Practices and any applicable State or federal law or
regulation. However, this shall not prevent the storage of agricultural
products and byproducts, temporary storage of trash or household waste in
receptacles for periodic off-site disposal, and composting or re-use of
biodegradable materials as permitted in Section 7 ("Right to Use Property for
Agricultural Uses"), generated off the Property for use on the Property or
commercial use so long as they are used and stored in accordance with
Sound Agricultural Practices. Notwithstanding the foregoing, the storage and
treatment of sewage associated with buildings permitted on the Property, is
permitted by this Easement.
Permission of Grantee
Where Grantor is required to obtain Grantee's permission for a
proposed action hereunder, said permission shall be requested in writing.
Grantee shall grant permission unless it determines that such action would 1)
violate the Purpose of this Easement, 2) impair the potential for long-term
agricultural viability associated with the Property, or 3) unnecessarily impede
the use of Property's prime, statewide important or unique soils. Grantee
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shall respond in writing within forty-five (45) days of receipt of the Grantor's
written request, which request shall include building plans identifying the use,
footprint and total square footage of any proposed structures, and related
survey information, if available. Grantee shall not be liable for damages for
any failure to grant permission to Grantor.
19. Ongoing Responsibilities of Grantor and Grantee
Other than as specified herein, this Easement is not intended to impose
any legal or other responsibility on Grantee, or in any way to affect any
obligations of Grantor as owner of the Property, including, but not limited to,
the following:
19(a) Taxes -- Grantor shall be solely responsible for payment of all
taxes and assessments levied against the Property. If the Grantor becomes
delinquent in payment of taxes the Grantee, at its option, shall have the
right to take such actions as may be necessary to protect the Grantee's
interest in the Property and to assure the continued enforceability of this
instrument and to recover all of its costs including reasonable attorney's
fees. If, as a result of such actions, Grantee ever pays any taxes or
assessments on Grantors interest in the Property, Grantor will promptly
reimburse Grantee for the same.
19(b) Upkeep and Maintenance -- Grantor shall be solely responsible for
the upkeep and maintenance of the Property, to the extent required by law
and this Easement. Grantee shall have no obligation for the upkeep or
maintenance of the Property.
19(c) Liability and Indemnification - Grantor agrees to indemnify and
hold Grantee and the State of New York, Department of Agriculture and
Markets harmless from any and all costs, claims or liability, including but not
limited to reasonable attorneys fees arising from any personal injury,
accidents, negligence or damage relating to the Property, or any claim
thereof, unless due to the negligence of Grantee or its agents, in which case
liability shall be apportioned accordingly,
20. Extinguishment of Development Rights
Except as otherwise reserved to the Grantor in this Easement, all
development rights appurtenant to the Property are hereby released,
terminated and extinguished, and may not be used on or transferred to any
portion of the Property as it now or hereafter may be bounded or described, or
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to any other property adjacent or otherwise, or used for the purpose of
calculating permissible lot yield of the Property or any other property.
21. Baseline Documentation
By its execution of this Easement, Grantee acknowledges that the
present uses of the Property are permitted by this Easement. ]:n order to
evidence the present condition of the Property (including both natural and
man-made features) so as to facilitate future monitoring and enforcement of
this Easement, a Baseline Documentation Report, including maps, describing
such condition at the date hereof, has been prepared and a copy will be kept
on file with Grantee. The Report may be used by Grantee to establish that a
change in the use or character of the Property has occurred, but its existence
shall not preclude the use by Grantee of other evidence to establish the
condition of the Property as of the date of this Easement.
22. Right of Inspection
Grantee shall have the right to enter upon the Property upon forty-eight
(48) hours advance notice to Grantor for the purpose of inspecting for
compliance with the terms of this Easement. Such inspection shall be
conducted between the hours of 9 a.m. and 7 p.m. on a weekday that is not
a legal holiday recognized by the State of New York or at a date and time
agreeable to the Grantee and Grantor. In the instance of a violation or
suspected violation of the terms of this Easement which has caused or
threatens to cause irreparable harm to any of the agricultural or other
resources this Easement is designed to protect, no such advance notice is
required. Representatives of the New York State Department of Agriculture
and Markets shall have the same right of inspection.
23. Enforcement
If Grantee determines that a violation of this Easement has occurred,
Grantee shall so notify Grantor, giving Grantor thirty (30) days to cure the
violation. Notwithstanding the foregoing, where Grantee in Grantee's sole
discretion determines that an ongoing or threatened violation could
irreversibly diminish or impair the Purpose of this Easement, Grantee may
bring an action to enjoin the violation, ex parte if necessary, through
temporary or permanent injunction.
In addition to injunctive relief, Grantee shall be entitled to seek the
following remedies in the event of a violation:
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(a) money damages, including damages for the loss of the resources
protected under the Purpose of this Easement; and
(b) restoration of the Property to its condition existing prior to such
violation.
Said remedies shall be cumulative and shall be in addition to all
remedies now or hereafter existing at law or in equity, in any case where a
court finds that a violation has occurred, Grantor shall reimburse Grantee for
all its expenses incurred in stopping and correcting the violation, including,
but not limited to, reasonable attorneys' fees. The failure of Grantee to
discover a violation or to take immediate legal action shall not bar Grantee
from doing so at a later time. in any case where a court finds no violation
has occurred, each party shall bear its own costs.
24. Transfer of Property
Any subsequent conveyance, including, without limitation, transfer,
lease or mortgage of the Property, shall be subject to this Easement, and
any deed or other instrument evidencing or effecting such conveyance shall
contain language substantially as follows: "This {conveyance, lease,
mortgage, easement, etc.~} is subject to a Conservation Easement which
runs with the land and which was granted to the Town of Southoid by
instrument dated ~ , and recorded in the office of the Clerk of
Suffolk County at Liber ~ at Page "Grantor shall notify
Grantee in writing at least thirty (30) days before conveying the Property, or
any part thereof or interest therein, to any third party. The failure to notify
Grantee or to include said language in any deed or instrument shall not,
however, affect the validity or applicability of this Easement to the Property
or limit its enforceability in any way.
25. Amendment of Easement
This Easement may be amended only with the written consent of
Grantee and current Grantor and with the approval of the New York State
Department of Agriculture and Markets. Any such amendment shall be
consistent with the Purpose of this Easement and shall comply with the
Conservation Law or any regulations promulgated thereunder. Any such
amendment shall be duly recorded.
26. Alienation
No property rights acquired by Grantee hereunder shall be alienated
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except pursuant to the provisions of Chapter 25 or 59, as applicable, of the
Town Code of the Town of $outhold, following a public hearing and,
thereafter, ratified by a mandatory referendum by the electors of the Town
of Southold. No subsequent amendment of the provisions of the Town Code
shall alter the limitations placed upon the alienation of this property rights or
interests which were acquired by the Town prior to any such amendment.
27. Extinguishment of Easement
At the mutual request of Grantor, Grantee and New York State
Department of Agriculture and Markets, a court with jurisdiction may, if it
determines that conditions surrounding the Property have changed so much
that it becomes impossible to fulfill the Purpose of this Easement described in
Section 2 ("Purpose") herein, extinguish or modify this Easement in
accordance with applicable law. Tn that case, the mere cessation of farming
on the Property shall not be construed to be grounds for extinguishment of
this Easement.
Notwithstanding the foregoing, if condemnation by exercise of the power
of eminent domain make impossible the continued use of the Property for
Purpose of this Easement as described in Section 2 ("Purpose") herein, the
restrictions may be extinguished by judicial proceeding. Tn either case, upon
any subsequent sale, exchange or involuntary conversion by the Grantor,
Grantee shall be entitled to a portion of the proceeds from any subsequent sale
or other disposition of the Property, or title insurance proceeds, in accordance
with Section 28 ("Proceeds") herein.
28. Proceeds
The grant of this Easement gives rise to a property right, immediately
vested in Grantee, which, for purposes of calculating proceeds from a sale or
other disposition of the Property as contemplated under Section 27
("Extinguishment of Easement"), shall have a value equal to a percentage of
the value of the Property unencumbered by this Easement (the "Proportionate
Share"). The Proportionate Share is determined by dividing the value of this
Easement, calculated at the price per acre set forth in the Purchase/Sale
Agreement, by the unencumbered value of the Property, calculated as of the
date of the appraisal obtained by Grantee prior to execution of this easement.
The Proportionate Share is 73%. The Proportionate Share shall remain
constant (subject to reasonable adjustment to the extent permissible under
Section 170(h) of the Tnternal Revenue Code for any improvements which
may hereafter be made on the Property).
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With regard to the portion of such Proportionate Share equal to the
percentage of the purchase price of this Easement that was paid using State
Farmland Protection Program Grant funds, Grantee agrees to use such portion
in a manner consistent with the Purpose of this Easement. Prior to such re-
use, Grantee must notify the New York State Department of Agriculture and
Markets.
29. ~nterpretation
This Easement shall be interpreted under the laws of the State of New
York, or federal law, as appropriate. Any general rule of construction to the
contrary notwithstanding, this Easement shall be liberally construed to effect
the Purpose of this Easement. If any provision in this Easement is found to be
ambiguous, an interpretation consistent with the Purpose of this Easement
that would render the provision valid shall be favored over any interpretation
that would render it invalid.
30. Successors
Every provision of this Easement that applies to Grantor or Grantee shall
also apply to their respective agents, heirs, executors, administrators, assigns,
and other successors in interest, and shall continue as a servitude running in
perpetuity with the Property.
31. Severability
invalidity of any of the covenants, terms or conditions of this Easement,
or any part thereof, by court order or judgment shall in no way affect the
validity of any of the other provisions hereof which shall remain in full force
and effect.
32. Notices
Any notice required or desired to be given under this Easement shall
be in writing and shall be sent by (i) personal delivery, (ii) via registered or
certified mail, return receipt requested, or (iii) via Federal Express or other
private courier of national reputation providing written evidence of delivery.
Notice shall be deemed given upon receipt in the case of personal delivery,
and upon delivery by the U.S. Postal Service or private courier. All notices
shall be properly addressed as follows: (a) if to Grantee, at the address set
forth above; (b) if to Grantor, at the address set forth above; (c) if to any
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subsequent owner, at the address of the Property;(d) if to New York State
Department of Agriculture and ivlarkets, 10B Airline Drive, Albany, New York
12235. Any party can change the address to which notices are to be sent to
him, her or it by duly giving notice pursuant to this Section.
33. Title
The Grantor covenants and represents that the Grantor is the sole
owner and is seized of the Property in fee simple and has good right to grant
and convey the aforesaid Easement; that the Property is free and clear of
any and all mortgages not subordinated to this Easement, and that the
Grantee shall have the use of and enjoyment of the benefits derived from
and existing out of the aforesaid Easement.
34. Subsequent Liens on Property
No provisions of this Easement should be construed as impairing the
ability of Grantor to use this Property, or a portion thereof encompassing
entire separately deeded parcels, as collateral for a subsequent borrowing.
3S. Subsequent Encumbrances
The grant of any easements or use restrictions is prohibited, except with
the permission of Grantee.
36. Grantor's Environmental Warranty
Nothing in this Easement shall be construed as giving rise to any right or
ability in Grantee, or the New York State Department of Agriculture and
Markets to exercise physical or management control over the day-to-day
operations of the Property, or any of Grantor's activities on the Property, or
otherwise to become an operator with respect to the Property within the
meaning of The Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended ("CERCLA") or any corresponding
state and local statute or ordinance.
Grantor warrants that it has no actual knowledge of a release or
threatened release of hazardous substances or wastes on the Property, as
such substances and wastes are defined by applicable law, and hereby
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promises to indemnify Grantee, and New York State Department of Agriculture
and Markets against, and hold Grantee and New York State Department of
Agriculture and Markets harmless from, any and all loss, cost, claim (without
regard to its merit), liability or expense (including reasonable attorneys' fees)
arising from or with respect to any release of hazardous waste or violation of
environmental laws.
If at any time after the effective date of this Easement there occurs a
release in, on, or about the property of any substance now or hereafter
defined, listed, or otherwise classified pursuant to any federal, state, or local
law, regulation, or requirement as hazardous, toxic, polluting, or otherwise
contaminating to the air, water, or soil, or in any way harmful or threatening
to human health or the environment, Grantor agrees to take all steps that
may be required under federal, state, or local law necessary to assure its
containment and remediation, including any cleanup.
37. Duration of Easement
Except as expressly otherwise provided herein, this Easement shall be of
perpetual duration, and no merger of title, estate or interest shall be deemed
effected by any previous, contemporaneous, or subsequent deed, grant, or
assignment of an interest or estate in the Property, or any portion thereof, to
Grantee, it being the express intent of the parties that this Easement not be
extinguished by, or merged into, any other interest or estate in the Property
now or hereafter held by Grantee.
38. Entire Agreement
This instrument sets forth the entire agreement of the parties with
respect to the Easement and supersedes all prior discussions, negotiations,
understandings and agreements relating to the Easement, all of which are
merged herein. No alteration or variation of this instrument shall be valid or
binding unless contained in an amendment that complies with Section 25
("Amendment").
39. Waiver
No waiver by Grantee of any default, or breach hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default or breach hereunder or affect in any way any rights arising by virtue of
any prior or subsequent such occurrence. No waiver shall be binding unless
executed in writing by Grantee.
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40. Binding Effect
The provisions of this Easement shall run with the Property in perpetuity
and shall bind and be enforceable against the Grantor and all future owners and
any party entitled to possess or use the Property or any portion thereof while
such party is the owner or entitled to possession or use thereof.
Notwithstanding the foregoing, upon any transfer of title, the transferor shall,
with respect to the Property transferred cease being a Grantor or owner with
respect to such Property for purposes of this Easement and shall, with respect
to the Property transferred, have no further responsibility, rights or liability
hereunder for acts done or conditions arising thereafter on or with respect to
such Property, but the transferor shall remain liable for earlier acts and
conditions done or occurring during the period of his or her ownership or
conduct.
41. Captions
The captions in this instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall
have no effect upon construction or interpretation.
IN WITNESS WHEREOF, Grantor and Grantee, intending to be legally
bound hereby, have hereunto set their hands on the date first above written.
Grantor: EWH, L-C-C Llm~J~¢~ c~E, I, (~OYY~ ~
By: ~
PETER HARBES
Grantee: TO/W~ OF SOUTHOLD
By. ~
SCO'Ur A. RUSSELL, SUPE~RV[SOR
State of New York)
County of ss:
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On the ]O--day~- of ~ in the year 2006 before me, the undersig[led, personally appeared
PETER HARBES, personally known to me or proved to me on the basis of satisfactory evidence
to be the individual (s) whose name ~ is (a~0 subscribed to the within instrument and
acknowledged to me that he/sl'.c/~.;y executed the same in his/he~ capacity (ies), and that by
his/heI'/15'~r signature(s) on the instrument, the individual(s), or the person upon behalf of which
the individual(s) acted, executed the instrument.
Signaturc4office of individual taking acknowledgement
State of New York )
County of ss:
On the ~ 04~'day of AJ~IrC,/,~.
in the year 2006 before me, the undersigned, personally
appeared SCOTT A. RUSSELL, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual (~ whose name Os) is (arc) subscribed to the within
instrument and acknowledged to me that he/sha~th~y executed the same in his/her~their capacity
(ies), and that by his/hcr/t?.z~r signature(s) on the instrument, the individual(s), or the person upon
behalf of which the individual(s) acted, executed the instrument.
Signatu[e/~ffice of individua~ taking ~tckno~led~%ment
C:\Documents and SettingsL~nne\My Documenls~Anne\Town of Southold Deeds of Development Rights\EWH,LLC EASEMENT.doc
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Stewart Title Insurance Company
Title No: ST-S-6330
(AMENDED 03/23/2006)
DEVELOPMENT P~GHTS
Schedule A Description
ALL that certain plot, piece or parcel of land, situate, lying and being in the Hamlet of Mattituck,
Town of Southold, County of Suffolk and State of New York, bounded and described as follows:
BEGINNING at a point on the westerly line Aldrich Lane at the northeasterly comer of premises
described herein which said point is distant 1,830.77 feet southerly from a monument at the
intersection of the south side of Sound Avenue and the westerly line of Aldrich Lane as measured
along the westerly line of Aldrich Lane;
RUNNING THENCE along the westerly side of Aldrich Lane South 18 degrees 25 minutes 20
seconds East 159.71 feet;
THENCE along the "Reserved Area" the following courses and distances:
(1) South 78 degrees 28 minutes 40
(2) South 79 degrees 34 minutes 00
(3) South 19 degrees 42 minutes 54
(4) South 69 degrees 54 minutes 23
(5) South 20 degrees 05 minutes 37
(6) South 69 degrees 54 minutes 23
(7) South 19 degrees 47 minutes 10
(8) North 69 degrees 54 minutes 23
(9) North 20 degrees 52 minutes 10
(10) North 69 degrees 57 minutes 20
(11) North 20 degrees 02 minutes 40
(12) North 69 degrees 54 minutes 23
Joseph Lebkuecher, Jr.;
seconds West, 277.56 feet;
seconds West, 326.86 feet;
seconds East, 799.39 feet;
seconds West, 757.88 feet;
seconds East, 145.39 feet;
seconds West, 89.77 feet;
seconds East, 396.68 feet;
seconds East, 96.87 feet;
seconds West, 367.59 feet;
seconds East, 678.25 feet;
seconds West, 125.08 feet;
seconds East, 120.00 feet to lands now or formerly
THENCE along said lands now or formerly Joseph Lebkuecher, Jr.
TOGETHER with all right, title and interest of the party of the first part, in and to the land lying
in the street in front of and adjoining said premises.
(1)
(2)
(3)
(4)
(5)
(6)
South 20 degrees 02 minutes 40 seconds East, 798.35 feet to a monument;
South 77 degrees 50 minutes 40 seconds West, 176.78 feet to a monument;
South 76 degrees 31 minutes 10 seconds West 297.80 feet to a monument;
South 77 degrees 34 minutes 20 seconds West, 130.34 feet to a monument;
South 73 degrees 04 minutes 00 seconds West, (through a monument 366.18 feet to a
monument;
North 19 degrees 47 minutes 10 seconds West, 1,269.83 feet to a monument and
lands now or formerly Big E Farms, (First Long Island Investors);
THENCE North 19 degrees 45 minutes 00 seconds West, 388.21 feet to lands now or formerly
Peter Harbes;
THENCE North 71 degrees 31 minutes 30 seconds East along said lands now or formerly Peter
Harbes, 1,523.20 feet to the westerly side of Aldrich Lane, to the point or place of
BEGINNING.
TOGETHER with all right, title and interest of the party of the first part, in and to the land lying
in the street in front of and adjoining said premises.
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DECLARATTON OF COVENANTS AND RESTRi'CT1'ONS
THIS DECLARATION, made as of this Z~_.~-~day of Harch 2006, by
EWH LIM1TED LIABILITY COMPANY with an address of P.O. Box 1731, Mattituck,
NY 11952, hereinafter referred to as the "DECLARANT".
WITNESSETH:
WHEREAS, DECLARANT is the owner of certain real property designated
as SCTM#1000-120-3-11.12 situate in the Town of Southold, a municipal
corporation of the County of Suffolk and State of New York (the 'q-own"), and
WHEREAS, the DECLARANT has agreed to sell and convey the
Development Rights to the Town for part of SCTM #1000-120~3-11.12, located
at 5645 Aldrich Lane, Laurel (the "Property"), further described on the attached
Schedule "A" and to grant a Deed of Conservation Easement to the Town; and
WHEREAS, for and in consideration of the purchase of Development
Rights, the Town Board of the Town of Southold has deemed it in the best
interests of the Town of Southold and the owners and prospective owners of the
property that the within covenants and restrictions be imposed on a certain other
part of SCTM# 1000-120-3-11.~2 and that this Declaration be recorded in the
Suffolk County Clerk's Office; and
WHEREAS, the DECLARANT has considered the foregoing and has
determined that same will be in the interests of the DECLARANT and any
subsequent owners of the property.
NOW, THEREFORE, be it declared as follows:
The DECLARANT, for the purpose of carrying out the intentions above
expressed does hereby make known, admit, publish, covenant and agree that
the area designated as the "Reserved [sic] Area" on a survey prepared by
Stanley .1. Isaksen, Ir. dated August 26, 2003 and last revised March 2, 2006 and
further described in Schedule "~" attached and made a part hereof shall
hereafter be subject to the covenants and restrictions as herein cited, which
covenants and restrictions shall run with the land and shall be binding upon
DECLARANT and upon all purchasers and holders of said lot, their heirs,
executors, legal representatives, distributes, successors and assigns, to wit:
1. Residential use of the Reserve Area shall be limited to farm-related
housing for use by farm employees and/or farm managers and/or farm
owners, in accordance with applicable provisions of the Town Code.
2. The Reserve Area shall not be subdivided in any manner that
separates it from the Property encumbered by the Conservation
Easement, recorded simultaneously herewith;
3. The Reserve Area shall not be subdivided into smaller reserve
areas, unless each reserve area remains part of the Property encumbered
by the Conservation Easement.
The covenants and restrictions contained herein shall be construed to be
in addition to and not in derogation or limitation upon any local, state, and
federal laws, ordinances, regulations or provisions in effect at the time of
execution of this Declaration, or at the time such laws, ordinances, regulations
and/or provisions may hereafter be revised, amended or promulgated.
The covenants and restrictions contained herein shall be enforceable by
the Town of Southold, by injunctive relief or by any other remedy in equity or at
law. The failure of the Town or any of its agencies to enforce this Declaration
shall not be deemed to affect the validity of the Covenants and Restrictions or to
impose any liability whatsoever upon the Town or any officer or employee
thereof. :
If any section, subsection, paragraph, clause, phrase or provision of these
Covenants and Restrictions shall be adjudged illegal, unlawful, invalid or held to
be unconstitutional by a Court of competent jurisdiction, the same shall not
affect the validity of these Covenants and Restrictions as a whole, or any other
part or provision hereof other than the part so adjudged to be illegal, unlawful,
invalid, or unconstitutional.
The within Declaration is made subject to the provisions of all laws
required by law or by their provisions to be incorporated herein and they are
deemed to be incorporated herein and made a part hereof, as though fully set
forth.
The within Declaration shall run with the land and shall be binding upon
DECLARANT, its successors and assigns, and upon all persons or entities claiming
under it, and may not be annulled, waived, changed, modified, terminated,
revoked or amended by subsequent owners of the Property.
IN WITNESS WHEREOF, the DECLARANT above named, has duly
executed the foregoing Declaration the day and year first above written.
DECLARANT:
EWH, LLC
By: Peter Harbes
STATE OF NEW YORK)
SS.:
COUNTY OF SUFFOLK)
On the [0 day of MARCH in the year 2006 before me, the undersigned, personally
appeared Peter Harbes, personally known to me or proved to me on the basis of satisfactory
evidence to be the individuals whose names are subscribed to the within instrument and
acknowledged to me that they executed the same in their capacity, and that by their signature
on the instrument, the individuals, or the persons upon behalf of which the individuals acted,
executed the instrument, and that such individuals made such appearance before the
undersigned in (town ~nd state).
Notary Public
C:\Documents and Settings~netMy Documents~Anne~Zoning\C&Rreservearea-drafl doc
Stewart Title Insurance Company
Title No: ST-S-6330
Schedule A Description
(AMENDED 03/23/2006)
DEVELOPMENT RIGHTS
ALL that certain plot, piece or parcel of land, situate, lying and being in the Hamlet of Mattituck,
Town of Southold, County of Suffolk and State of NeW York, bounded and described as follows:
BEGINNING at a point on the westerly line Aldrich Lane at the northeasterly comer of premises
described herein which said point is distant 1,830.77 feet southerly from a monument at the
intersection of the south side of Sound Avenue and the westerly line of Aldrich Lane as measured
along the westerly line of Aldrich Lane;
RUNNING THENCE along the westerly side of Aldrich Lane South 18 degrees 25 minutes 20
seconds East 159.71 feet;
THENCE along the "Reserved Area" the following courses and distances:
(1) South 78 degrees 28 minutes 40 seconds West, 277.56 feet;
(2) South 79 degrees 34 minutes 00 seconds West, 326.86 feet;
(3) South 19 degrees 42 minutes 54 seconds East, 799.39 feet;
(4) South 69 degrees 54 minUtes 23 seconds West, 757.88 feet;
(5) South 20 degrees 05 minutes 37 seconds East, 145.39 feet;
(6) South 69 degrees 54 minutes 23 seconds West, 89.77 feet;
(7) South 19 degrees 47 minutes 10 seconds East, 396.68 feet;
(8) North 69 degrees 54 minutes 23 seconds East, 96.87 feet;
(9) North 20 degrees 52 minutes 10 seconds West, 367.59 feet;
(10) North 69 degrees 57 minutes 20 seconds East, 678.25 feet;
(11) North 20 degrees 02 minutes 40 seconds West, 125~08 feet;
(12) North 69 degrees 54 nfinutes 23 seconds East, 120.00 feet to lands now or formerly
Joseph Lebkuecher, Jr.;
THENCE along said lands now or formerly Joseph Lebkuecher, Jr.
TOGETHER with ail right, title and interest of the party of the first part, in and to the land lying
ha the street in front 0fand adjoining said premises.
(1) South 20 degrees 02 minutes 40 seconds East, 798.35 feet to a monument;
(2) South 77 degrees 50 minutes 40 seconds West, 176.78 feet to a monument;
(3) South 76 degrees 31 minutes 10 seconds West 297.80 feet to a monument;
(4) South 77 degrees 34 minutes 20 seconds West, 130.34 feet to a monument;
(5) South 73 degrees 04 minutes 00 seconds West, (through a monument 366.18 feet to a
monument;
(6) North 19 degrees 47 minutes 10 seconds West, 1,269.83 feet to a monument and
lands now or formerly Big E Farms, (First Long Island Investors);
THENCE North 19 degrees 45 minutes 00 seconds West, 388.21 feet to lands now or formerly
Peter Harbes;
THENCE North 71 degrees 31 minutes 30 seconds East along said lands now or formerly Peter
Harbes, 1,523.20 feet to the westerly side of Aldrich Lane, to the point or place of
BEGINNING.
TOGETHER with all fight, title and interest of the party of the first part, in and to the land lying
in the street in front of and adjoi~sng said premises.
RESERVED AREA
ALL that certain plot, piece or parcel of land, situate, lying and being in the Hamlet of Mattituck,
Town of Southold, County of Suffolk and State of New York, bounded and described as follows:
BEGINNING at a point on the westerly line Aldrich Lane at the northeasterly comer of premises
described herein which said point is distant 1,990.48 feet southerly from a monument at the
intersection of the south side of Sound Avenue and the westerly line of Aldrich Lane as measured
along the westerly line of Aldrich Lane;
TItENCE along the "Development Rights" area the following courses and distances:
South 78 degrees 28 minutes 40 seconds West, 277.56 feet;
South 79 degrees 34 minutes 00 seconds West, 326.86 feet;
South 19 degrees 42 minutes 54 seconds East, 799.39 feet;
South 69 degrees 54 minutes 23 seconds West, 757.88 feet;
South 20 degrees 05 minutes 37 seconds East, 145.39 feet;
South 69 degrees 54 minutes 23 seconds West, 89.77 feet;
South 19 degrees 47 minutes 10 seconds East, 396.68 feet;
North 69 degrees 54 minutes 23 seconds East, 96.87 feet;
North 20 degrees 52 minutes 10 seconds West, 367.59 feet;
North 69 degrees 57 minutes 20 seconds East, 678.25 feet;
North 20 degrees 02 minutes 40 seconds West, 125.08 feet;
North 69 degrees 54 minutes 23 seconds East, 120.00 feet to lands now or formerly Joseph
Lebkuecher, Jr.;
THENCE along said lands now or formerly Joseph Lebkuecher, Jr. North 20 degrees 02 minutes
40 seconds West, 142.29 feet to a monmnent and lands now or formerly William Nedoszytko and
Barbara Rychwalski;
THENCE along said lands now or formerly William Nedoszytko and Barbara Rychwalski and
later along lands now or formerly Anna Corwin:
North 19 degrees 43 minutes 00 seconds West 659.71 feet;
North 79 degrees 34 minutes 00 seconds East 279.81 feet;
North 78 degrees 28 minutes 40 seconds East 282.40 feet to the westerly side of Aldrich Lane;
THENCE North 18 degrees 25 minutes 20 seconds West along the westerly side of Aldrich Lane
40.29 feet to the point or place of BEGINNING.
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SUBORDINATION AGREEMENT
(MORTGAGE)
This Agreement is entered into between Bridgehampton National Bank, and its
successors and assigns (the "Mortgagee"), a corporation with principal offices at
2200 Montauk Highway, Bridgehampton, whose mailing address is 2200 Montauk
Highway, P.O. Box 3005, Bridgehampton, New York 11932, and EWH, LLC, c/o
Peter Harbes, P.O. Box 1731, Mattituck, New York 11952 (the "Mortgagor") and
the Town of Southold, a municipality in the County of Suffolk, State of New York,
with its principal office located at 53095 Main Road, Southold, New York 11971
("Town of Southold").
WHEREAS, Mortgagor, EWH Limited Liability Company is the owner of a
certain piece of real property designated as SCTM# 1000-120-3-11.12 and
located at 5645 Aldrich Lane, Laurel, Town of Southold, Suffolk County, New
York, (the "Property"); and
WHEREAS, Mortgagee is the holder of a promissory note made by
Mortgagor, dated December 21, 2005, in the original principal amount of
50 " ' · ' .
$ 0,000.00 (the Note ), which ~s secured by a mortgage encumbenng the
Property of even date therewith, recorded in Liber 21207 page 697 on January 9,
2006, in the records of the Clerk of Suffolk County, New York (the "Mortgage");
and
WHEREAS, concurrently with this Agreement, Mortgagor is conveying a
Deed of Conservation Easement (the "Easement") over a portion of the Property
to the Town of Southold, the area of which is more particularly described in
Exhibit A attached hereto and made a part hereof; and
WHEREAS, the Easement consists of tile limitations, agreements,
covenants, use, restrictions, rights, terms and conditions set forth therein,
intended to restrict the use of the Property as set forth in the Easement; and
WHEREAS, the Easement, which would not otherwise be conveyed by
Mortgagor or accepted by the Town of Southold, is being conveyed and accepted
in reliance on this Agreement;
NOW THEREFORE, in consideration of the above and the mutual
covenants and promises contained herein, and other valuable consideration the
receipt and sufficiency of which is hereby acknowledged, it is represented and
agreed as follows:
1. The Mortgage is subordinated and hereafter shall be junior to the
Easement to the extent necessary to permit the Town of Southold to enforce the
Easement in perpetuity and to prevent any modification or extinguishment of the
Easement by the exercise of any rights of the Mortgagee.
2. The priority of the Mortgage with respect to any valid claim on the
part of the IViortgagee to the proceeds of any sale, condemnation proceedings or
insurance, or to the leases, rents and profits of the portion of the Property that is
the subject of the Easement, is not affected hereby provided, however, that if
the Easement is extinguished under the circumstances described in Section 27 of
the Easement, the Town of $outhold shall be entitled to compensation in
accordance with the terms set forth in the Easement.
3. Mortgagee shall not be joined as a defendant in any action to
enforce the Easement seeking damages, fees, or costs of any kind, and the
Mortgage shall have priority over any judgment entered for any costs, fees, or
damages under the Easement, unless the violation representing the grounds for
the action was caused by the Mortgagee or its agents or employees.
4. If at any time in an action to enforce the Easement the Town of
Southold obtains injunctive relief requiring that the Property be restored in any
respect, Mortgagee shall not be held liable for any costs of restoration,
regardless of who is in possession of the portion of the Property that is subject to
the Easement, unless Mortgagee or its agents or employees are responsible for
the condition requiring restoration.
5. In the event of the foreclosure of the Mortgage, whether by judicial
decree or pursuant to a power of sale, the Easement shall not be extinguished
but shall survive and continue to encumber the Property.
6. This Agreement shall be binding upon, and inure to the benefit of,
the parties hereto and their respective personal representatives, heirs,
successors, and assigns.
7. An endorsement has been placed upon the Note stating that it has,
by this instrument, been sUbordinated to the Easement to the extent described
herein.
Entered this
This Agreement shall be recorded immediately after the Easement.
/~/~_ day of March, 2006.
Mortgagee: BRIDGEHAMPTON
NATIONAL BANK
Mortgagor: EWH, LLC
By: ~
PETER HARBES
Town of Southold
SC0'1-I- A. RUSSELL
SCHEDIJLE OF EXHIBITS
A. Legal Description of Easement area
Stewart Title Insurance Company
Title No: ST-S-6330
Schedule A Description
(AMENDED 03/23/2006)
DEVELOPMENT RIGHTS
ALL that certain plot, piece or parcel of land, situate, lying and being in the Hamlet of Mattituck,
Town of Southold, County of Suffolk and State of NeW York, bounded and described as follows:
BEGINNING at a point on the westerly line Aldrich Lane at the northeasterly comer of premises
described herein which said point is distant 1,830.77 feet squtherly from a monument at the
intersection of the south side of Sound Avenue and the westerly line of Aldrich Lane as measured
along the westerly line of Aldrich Lane;
RUNNING THENCE along the westerly side of Aldrich Lane South 18 degrees 25 minutes 20
seconds East 159.71 feet;
THENCE along the "Reserved Area" the following courses and distances:
(1) South 78 degrees 28 minutes 40 seconds West, 277.56 feet;
(2) South 79 degrees 34 minutes 00 seconds West, 326.86 feet;
(3) South 19 degrees 42 minutes 54 seconds East, 799~39 feet;
(4) South 69 degrees 54 minutes 23 seconds West, 757.88 feet;
(5) South 20 degrees 05 minutes 37 seconds East, 145.39 feet;
(6) South 69 degrees 54 minutes 23 seconds West, 89.77 feet;
(7) South 19 degrees 47 minutes 10 seconds East, 396.68 feet;
(8) North 69 degrees 54 minutes 23 seconds East, 96.87 feet;
(9) North 20 degrees 52 minutes 10 seconds West, 367.59 feet;
(I0) North 69 degrees 57 minutes 20 seconds East, 678.25 feet;
(11) North 20 degrees 02 minutes 40 seconds West, 125.08 feet;
(12) North 69 degrees 54 tab,utes 23 seconds East, 120.00 feet to lands now or formerly
Joseph Lebkuecher, Jr.;
THENCE along said lands now or formerly Joseph Lebkuecher, Jr.
TOGETHER with all right, title afidTnterest of the party of the tn:st part, in and to the land lying
in the street in front of and adjoining said premises.
(1) South 20 degrees 02 minutes 40 seconds East, 798.35 feet to a monument;
(2) South 77 degrees 50 minutes 40 seconds West, 176.78 feet to a monument;
(3) South 76 degrees 31 minutes 10 seconds West 297.80 feet to a monument;
(4) South 77 degrees 34 minutes 20 seconds West, 130.34 feet to a monument;
(5) South 73 degrees 04 minutes 00 seconds West, (through a monument 366.18 feet to a
monument;
(6) North 19 degrees 47 minutes 10 seconds West, 1,269.83 feet to a monument and
lands now or formerly Big E Farms, (First Long Island Investors);
THENCE North 19 degrees 45 minutes 00 seconds West, 388.21 feet to lands now or formerly
Peter Harbes;
THENCE North 71 degrees 31 minutes 30 seconds East along said lands now or formerly Peter
Harbes, 1,523.20 feet to the westerly side of Aldrich Lane, to the point or place of
BEGINNING.
TOGETHER with all fight, title and interest of the party of the first part, in and to the land lying
in the street in front of and adjohting said premises.
State of New York )
I Ic
Onthe q dayof ./~'~..~ in the year 2006 before me, the undersigned,
personally appeared NANCY MESSER, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual (s) whose name (s) is (are) subscribed to
the within instrument and acknowledged to me that he/sl~e/tbey executed the same in
his/her/tlieir capacity (les), and that by his/her/their signature(s) on the instrument, the
indivklual(s), or the person upon behalf of which the individual(s) acted, executed the
instrument.
State of New York )
UNDA 8. OARL~ON
~ .P. ubll~, State of New
No. 01~A6157178
Qualified In Suffolk County
~ommls~lon Explre~ Nov. 14, ~0_=.
On the /(~'~ay of ~t~E_Z_ in the year 2006 before me, the uudersigned, personally
appeared PETER HARBES, personally known to me or proved to me ou the basis of
satishcto~ evidence to be the individual (~ whose name ~is ere) subscribed to the within
instrument and acknowledged to me that he/s~y executed the same in bis/~'
capacity ~, and that by his/her/th~' signature(s) on the instrument, the individual(s), or
the person upon behalf of which the individual(~acted, executed the instrument.
Signatt~re~ffice of indimduai ~aklng a~kno~vled~ne~t
State of New York )
County of
SS;
Ou the ~_~day of NCL~ iu the year 2006 before me, the uudersigned,
personally appeared SCOTT A. RUSSELL, personally lmown to lne or proved to me on
the basis of satishctou evidence to be the individual ~ whose name (~ is~) subscribed
to the within instrument and acknowledged to me that he/~y executed the same in
hi~r capacity (~), and that by his/hcr,~' signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted, executed the
instrument.
1 ed ,ement
S~gnatme/ofl~ce ofmdtwdm g g
~lD~°Ec~;~'~l~ld]icgs\Anae\ en~ Righ(s\BN B-SUBOR DINAT ON
SUBORDINATION AGREEMENT
(ASSIGNMENT OF LEASES AND RENTS)
This Agreement is entered into between Bridgehampton National Bank, and its
successors and assigns (the "Mortgagee"and/or the "Assignee"), a corporation
with principal offices at 2200 Montauk Highway, Bridgehampton, whose mailing
address is 2200 Montauk Highway, P.O. Box 3005, Bridgehampton, New York
11932, and EWH, LLC, c/o Peter Harbes, P.O. Box 1731, Mattituck, New York
1:[952 (the "Mortgagor" and/or the "Assignor") and the Town of Southold, a
municipality in the County of Suffolk, State of New York, with its principal office
located at 53095 Main Road, Southold, New York 11971 ("Towr of Southold").
WHEREAS, Mortgagor/Assignor, EWH Limited Liability Corr pany is the
owner of a certain piece of real property designated as SCTM#
11.12 and located at 5645 Aldrich Lane, Laurel, Town of Southold, Suffolk
County, New York, (the "Property"); and
WHEREAS, Mortgagee/Assignee is the holder of a promissory note made
by Mortgagor, dated December 2:1, 2005, in the original principal amount of
$506,000.00 (the "Note"), which is secured by a mortgage encumbering the
Property of even date therewith, recorded in Liber 21207 page 697 on January 9,
2006, in the records of the Clerk of Suffolk County, New York (the "Mortgage");
and an Assignment of Leases and Rents made by and between EWH Limited
Liability Company and Bridgehampton National Bank dated 12/21/2005 and
recorded 1/9/06 in Liber 12429 at page 497 and
WHEREAS, concurrently with this Agreement, Mortgagor/Assignor is
conveying a Deed of Conservation Easement (the "Easement") over a portion of
the Property to the Town of Southold, the area of which is more particularly
described in Exhibit A attached hereto and made a part hereof; and
WHEREAS, the Easement consists of the limitations, agreements,
covenants, use, restrictions, rights, terms and conditions set forth therein,
intended to restrict the use of the Property as set forth in the Easement; and
WHEREAS, the Easement, which would not otherwise be conveyed by
Mortgagor/Assignor or accepted by the Town of Southold, is being conveyed and
accepted in reliance on this Agreement;
NOW THEREFORE, in consideration of the above and the mutual
covenants and promises contained herein, and other valuable cOnsideration the
receipt and sufficiency of which is hereby acknowledged, it is represented and
agreed as follows:
1. The Assignment of Leases and Rents is subordinated and hereafter
shall be junior to the Easement to the extent necessary to permit the Town of
Southold to enforce the Easement in perpetuity and to prevent any modification
or extinguishment of the Easement by the exercise of any rights of the
Mortgagee/Assignee.
2. The priority of the Assignment of Leases and Rents with respect to
any valid claim on the part of the Mortgagee/Assignee to the proceeds of any
sale, condemnation proceedings or insurance, from the portion of the Property
that is the subject of the Easement, is not affected hereby provided, however,
that if the Easement is extinguished under the circumstances described in
Section 27 of the Easement, the Town of Southold shall be entitled to
compensation in accordance with the terms set forth in the Easement.
3. Mortgagee/Assignee shall not be joined as a defendant in any
action to enforce the Easement seeking damages, fees, or costs of any kind, and
the Assignment of Leases and Rents shall have priority over any judgment
entered for any costs, fees, or damages under the Easement, unless the violation
representing the grounds for the action was caused by the Mortgagee/Assignee
or its agents or employees.
4. If at any time in an action to enforce the Easement the Town of
Southold obtains injunctive relief requiring that the Property be restored in any
respect, Mortgagee/Assignee shall not be held liable for any costs of restoration,
regardless of who is in possession of the portion of the Property that is subject to
the Easement, unless Mortgagee/Assignee or its agents or employees are
responsible for the condition requiring restoration.
5. In the event of the foreclosure of the Mortgage, whether by judicial
decree or pursuant to a power of sale, and/or Mortgagor's/Assignor's default
under the Assignment of Leases and Rents and Mortgagee's/Assignee's exercise
of its rights under said Assignment of Leases and Rents, the Easement shall not
be extinguished but shall survive and continue to encumber the Property.
6. This Agreement shall be binding upon, and inure to the benefit of,
the parties hereto and their respective personal representatives, heirs,
successors, and assigns.
7. An endorsement has been placed upon the Note stating that it has,
by this instrument, been subordinated to the Easement to the extent described
herein.
Entered this
This Agreement shall be recorded immediately after the Easement.
/~) ~ day of March, 2006.
Mortgagee: BRIDGEHAMPTON
NATIONAL BANK
By:
I]N/~I~CY M E.~./ERJ~
Assistant Vl~e-President
Mortgagor: EWH, LLC
By: ~
PETER HARBES
Town of Southold:
SCHEDULE OF EXHIBITS
A. Legal Description of Easement area
By:
SCOTT A. RUSSELL
Stewart Title Insurance Company
Title No: ST-S-6330
Schedule A Description
(AMENDED 03/23/2006)
DEVELOPMENT RIGHTS
ALL that certain plot, piece or parcel of land, situate, lying and being in the Hamlet of Mattituck,
Town of Southold, County of Suffolk and State of NeW York, bounded and described as follows:
BEGINNING at a point on the westerly line Aldrich Lane at the northeasterly comer of premises
described herein which said point is distant 1,830.77 feet southerly from a monument at the
intersection of the south side of Sound Avenue and the westerly line of Aldrich Lane as measured
along the westerly line of Aldrich Lane;
RUNNING TItENCE along the westerly side of Aldrich Lane South 18 degrees 25 minutes 20
seconds East 159.71 feet;
THENCE along the "Reserved Area" the following courses and distances:
(1) South 78 degrees 28 minutes 40 seconds West, 277.56 feet;
(2) South 79 degrees 34 minutes 00 seconds West, 326.86 feet;
(3) South 19 degrees 42 minutes 54 seconds East, 799.39 feet;
(4) South 69 degrees 54 minUtes 23 seconds West, 757.88 feet;
(5) South 20 degrees 05 minutes 37 seconds East, 145.39 feet;
(6) South 69 degrees 54 minutes 23 seconds West, 89.77 feet;
(7) South 19 degrees 47 minutes 10 seconds East, 396.68 feet;
(8) North 69 degrees 54 minutes 23 seconds East, 96.87 feet;
(9) North 20 degrees 52 minutes 10 seconds West, 367.59 feet;
(10) North 69 degrees 57 minutes 20 seconds East, 678.25 feet;
(11) North 20 degrees 02 minutes 40 seconds West, 125108 feet;
(12) North 69 degrees 54 minutes 23 seconds East, 120.00 feet to lands now or formerly
Joseph Lebkuecher, Jr.;
THENCE along said lands now or formerly Joseph Lebkuecber, Jr.
TOGETHER with all right, title arid interest of the par~y of the fLrst part, in and to the land lying
in the slreet in fi'ont of and adjoining said premises.
(1) South 20 degrees 02 minutes 40 seconds East, 798.35 feet to a monument;
(2) South 77 degrees 50 minutes 40 seconds West, 176.78 feet to a monument;
(3) South 76 degrees 31 minutes 10 seconds West 297.80 feet to a monument;
(4) South 77 degrees 34 minutes 20 seconds West, 130.34 feet to a monument;
(5) South 73 degrees 04 minutes 00 seconds West, (through a monument 366.18 feet to a
monument;
(6) North 19 degrees 47 minutes 10 seconds West, 1,269.83 feet to a monument and
lands now or formerly Big E Farms, (First Long Island Investors);
THENCE North 19 degrees 45 minutes 00 seconds West, 388.21 feet to lands now or formerly
Peter Harbes;
THENCE North 71 degrees 31 minutes 30 seconds East along said lands now or formerly Peter
Harbes, 1,523.20 feet to the westerly side of Aldrich Lane, to the point or place of
BEGINNING.
TOGETHER with all hght, title and interest of the party of the first part, in and to the land lying
ha the street in front of and adjoining said premises.
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ALTA OWNER'S POLICY- 10-17-92
POLICY OF TITLE INSURANCE ISSUED BY
STEWART TITLE®
INSURANCE COMPANY
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE
CONDITIONS AND STIPULATIONS, STEWART TITLE INSURANCE COMPANY, a New York corporation, herein called the Company,
insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the Amount of Insurance stated in
Schedule A, sustained or incurred by the insured by mason of:
1. Title to the estate or interest described in Schedule A being vested other than as stated therein;
2. Any defect in or lien or encumbrance on the title;
3. Unmarketability of the title;
4. Lack of a right of access to and from the land.
The Company will also pay the costs, attorneys' fees and expenses incurred in defense of the title, as insured, but only to the
extent provided in the Conditions and Stipulations.
IN WITNESS WHEREOF, Stewart Title Insurance Company has caused this policy to be signed and sealed by its duly authorized
officers as of the Date of Policy shown in Schedule A.
STEWART TITLE®
Countersigned by:
Secretary
EXCLUSIONS FROM COVERAGE
The following moiters ore expressly exduded ftom the coverage of this policy and the Company will not pay loss or damage, costs, altnrneys' fees or expenses which arise by reason
1. (a) Any Jew, ordinance or governmental retiulation (including but not limited to building and zoning lows, ordinances, or regulations) restriding, regulating, prohibiting or
relating to (i) the occupancy, use, or enjoyment of the land; (ii) the chornder, dimensions or Iocalion of any improvement now or hereafter erected on the land; (iii) a separation in
ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part; or (iv) environmental protection, al the et[eot of any violation of these
Inv,.s, ordinances or governmental regulations, except to the exlent that o notice of the enforcement thereof or a notice of a deled, lien or encumbrance resulting from a vioMion or
alleged violation affeding the land has been recorded in the public records at Dnte of Policy.
Ch) Any govemmentnl police power not excluded by Co) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting
[rom a viufntion or alleged violalion nP[eding the lend has been recorded in lhe public records at Date of Policy.
2. Rights of eminent domain unless eotice of the exercise thereof has been recorded in the public mcolds at Date of Policy, but not excluding from coverage any taking which has
occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge.
3. Defer, liens, encumbrances, adverse claims or other matters:
(a) created, suffered, assumed or agreed to by the insured claimant;
Cb) not known to the Company, hal recorded in the public records at Date of Policy, but known to lhe insured claimant and not disclosed in writing to the Company by the
insured claimant prior to the date the insured claimant became an insured under this policy;
(c) resulting in no loss or damage to the insured claimant;
Cd) altaching or created subsequent tn Dote of Policy; or
Ce) resulting in loss nl damage which would not have been sustained ifthe insured ciaimnnl had paid value for the estate or interest insured by this policy.
4 Any claim which arises nut of the transadion vesting in the Insured the estate or interest insured by this policy, by reason of the operation of federal bankruptcy, state
insolvency, or similar creditors' rights laws, that is based on:
Ca) the transaction creating the estate or interest insured by thb policy being deemed a ftaudulent conveyance or ftaudulent transfer; or
Ch) the transaction creating the estate or interest insured by this policy being deemed a preferential transfer except where the preferential transfer results from the failure:
(i) to timely record the instrument of transfer; or
(ii) of such recoldation lo impart notice to a purchaser fm vatue or a judgment or lien creditor.
Pa olaf
0-8831 - 3 5 2 6 3 0
NY~01 (1C~17 92)
Phone:
Stewart Title Insurance Company
125 Baylis Road Suite 201
Melville New York 11747
(631) 501-9615 Fax: (631) 501-9623
Date: March 10, 2006
Title No: ST-$-6330
Melanie Doroski
Melissa ,4. Spiro
Town of Southold- Land Preservation
53095 Route 25
P.O. Box 1179
Southold, New York ! 197140959
RE: Borrower/Current Owner:
P~'mises:
Reference:
Town of $outhoM
5645 AJdrich Lane
Mattituck, New York
In reference with the above captioned transaction, enclosed please find the followlng:
Owners Title Policy
NOTE: Any corrections or questions, please do not hesitate to call.
ALTA OWNER'S POLICY
SCHEDULE A
Title No.: ST-S-6330
Date of Policy: March 10, 2006
Policy No.: 0-8831-352630
Amount of Insurance: $1,897,500.00
1. Name of Insured:
Town of Southold
County: Suffolk
2. The estate or interest in the land described herein and which is covered by this policy is:
Development Rights
3. Title to the estate or interest in the land is vested in:
The Town of Southold who acquired Grant of Development Rights Easement by virtue of a deed of
conservation easement fi.om EWH, LLC and Peter Harbes, by deed dated 3/10/2006 and to be recorded
in the Suffolk County Clerk's/Register's Office.
4. The land referred to in this policy is described as follows:
See Schedule A Description, a~Lached hereto and made a part hereof.
District: 1000
Section: 120.00
Block: 03.00
Lot: 011.012,
4612 (7/93)
Page 2
STEWART TITLE
INSURANCE COMPANY
ALTA OWNER'S POLICY
MAR 2 4 200(
SCFI~DULE B
TitleNo.: ST-S-6330 PolicyNo O-8831-352630
EXCEPTIONS FROM COVERAGE
This policy does not insure against loss or damage (and the Company will not pay costs, attorney's fees
or expenses) which arise by reason of:
1. Right-of-Way as set forth in Liber 3493 at Page 32.
2. Declaration of Covenants and Restrictions affecting "Reserre Area", dated 3/10/2006 and to be recorded
in the Office of the Clerk of the County of Suffolk.
3. Policy excepts unpaid water, seWer and/or street frontage charges to date, if any.
4. Policy excepts the lien of restored taxes, plus interest and penalties, if any.
5. Policy Will except the terms and conditions of the Grant of Development Rights Easement to be executed by
the Grantor(s) and the Town of Southold.
Survey by Stanley Isaksen, Jr. dated August 22, 2003 and last dated March 22, 2006 shows Development
Rights area and more. Survey reading as to Development Rights area only shows "50 foot drainage swale"
traversing the premises, wooded area located, cleared area located, poly houses being erected located, area
for "hoop houses" located.
4613 (2/93 Page 3
STEWART TITLE
INSURANCE COMPANY
O.
Stewart Title Insurance Company
Title No: ST-S-6330
Policy No.: 0-8831-352630
(AMENDED 03/23/2006)
DEVELOPMENT RIGHTS
Schedule A Description
ALL that certain plot, piece or parcel of land, situate, lying and being in the Hamlet of Mattituck,
Town of Southold, County of Suffolk and State of New York, bounded and described as follows:
BEGINNING at a point on the westerly line Aldrich Lane at the northeasterly comer of premises
described herein which said point is distant 1,830.77 feet southerly from a monument at the
intersection of the south side of Sound Avenue and the westerly line of Aldrich Lane as measured
along the westerly line of Aldrich Lane;
RUNNING THENCE along the westerly side of Aldrich Lane South 18 degrees 25 minutes 20
seconds East 159.71 feet;
THENCE along the "Reserved Area" the following courses and distances:
(1) South 78 degrees 28 minutes 40 seconds West, 277.56 feet;
(2) South 79 degrees 34 minutes 00 seconds West, 326.86 feet;
(3) South 19 degrees 42 minutes 54 seconds East, 799.39 feet;
(4) South 69 degrees 54 minutes 23 seconds West, 757.88 feet;
(5) South 20 degrees 05 minutes 37 seconds East, 145.39 feet;
(6) South 69 degrees 54 minutes 23 seconds West, 89.77 feet;
(7) South 19 degrees 47 minutes 10 seconds East, 396.68 feet;
(8) North 69 degrees 54 minutes 23 seconds East, 96.87 feet;
(9) North 20 degrees 52 minutes 10 seconds West, 367.59 feet;
(10) North 69 degrees 57 minutes 20 seconds East, 678.25 feet;
(11) North 20 degrees 02 minutes 40 seconds West, 125.08 feet;
(12) North 69 degrees 54 minutes 23 seconds East, 120.00 feet to lands now or formerly
Joseph Lebkuecher, Jr.;
THENCE along said lands now or formerly Joseph Lebkuecher, Jr.
(1) South 20 degrees 02 minutes 40 seconds East, 798.35 feet to a monument;
(2) South 77 degrees 50 minutes 40 seconds West, 176.78 feet to a monument;
(3)
(4)
(5)
(6)
South 76 degrees 31 minutes 10 seconds West 297.80 feet to a monument;
South 77 degrees 34 minutes 20 seconds West, 130.34 feet to a monument;
South 73 degrees 04 minutes 00 seconds West, (through a monument 366.18 feet to a
monument;
North 19 degrees 47 minutes 10 seconds West, 1,269.83 feet to a monument and
lands now or formerly Big E Farms, (First Long Island Investors);
TItENCE North 19 degrees 45 minutes 00 seconds West, 388.21 feet to lands now or formerly
Peter Harbes;
THENCE North 71 degrees 31 minutes 30 seconds East along said lands now or formerly Peter
Harbes, 1,523.20 feet to the westerly side of Aldrich Lane, to the point or place of
BEGINNING.
RESERVED AREA
ALL that certain plot, piece or parcel of land, situate, lying and being in the Hamlet of Mattituck,
Town of Southold, County of Suffolk and State of New York, bounded and described as follows:
BEGINNING at a point on the westerly line Aldrich Lane at the northeasterly comer of premises
described.herein which said point is distant 1,990.48 feet southerly from a monument at the
intersection of the south side of Sound Avenue and the westerly line of Aldrich Lane as measured
along the westerly line of Aldrich Lane;
TFIENCE along the "Development Rights" area the following courses and distances:
South 78 degrees 28 minutes 40 seconds West, 277.56 feet;
South 79 degrees 34 minutes 00 seconds West, 326.86 feet;
South 19 degrees 42 minutes 54 seconds East, 799.39 feet;
South 69 degrees 54 minutes 23 seconds West, 757.88 feet;
South 20 degrees 05 minutes 37 seconds East, 145.39 feet;
South 69 degrees 54 minutes 23 seconds West, 89.77 feet;
South 19 degrees 47 minutes 10 seconds East, 396.68 feet;
North 69 degrees 54 minutes 23 seconds East, 96.87 feet;
North 20 degrees 52 minutes 10 seconds West, 367.59 feet;
North 69 degrees 57 minutes 20 seconds East, 678.25 feet;
North 20 degrees 02 minutes 40 seconds West, 125.08 feet;
North 69 degrees 54 minutes 23 seconds East, 120.00 feet to lands now or formerly Joseph
Lebkuecher, Jr.;
TItENCE along said lands now or formerly Joseph Lebkuecher, Jr. North 20 degrees 02 minutes
40 seconds West, 142.29 feet to a monument and lands now or formerly William Nedoszytko and
Barbara Rychwalski;
TItENCE along said lands now or formerly Willimn Nedoszytko and Barbara Rychwalski and
later along lands now or formerly Anna Corwin:
North 19 degrees 43 minutes 00 seconds West 659.71 feet;
North 79 degrees 34 minutes 00 seconds East 279.81 feet;
North 78 degrees 28 minutes 40 seconds East 282.40 feet to the westerly side of Aldrich Lane;
TItENCE North 18 degrees 25 minutes 20 seconds West along the westerly side of Aldrich Lane
40.29 feet to the point or place of BEGINNING.
Stewart Title Insurance Company
SCl EDULE B
PART II
Title No.: ST-S-6330 Policy No: -
In addition to the mattem set forth in Part I of this Schedule, the title to the estate or interest in the land described or referred to in
Sc. hedule A is subject to the following matters, if any be shown, but the Company insures that these matters are subordinate to the lien
or charge of the insured mortgage upon the estate or interest:
1. Mortgage made by EWH Limited Liability Company to The Bridgehampton National Bank
2. In the amount of amount $500,000.00 dated 12/21/2005 recorded 01/09/2006 Liber 21207 Page 697.
Subject to Assignment of Leases and Rents made by and between EWH Lin:fited Liability Company and Bridgehampton National
Bank, dated 12/21/2005 and recorded 01/09/2006 in Liber 12429 at Page 497; subordinated to Developmental Rights Easement
by instrument in writing dated 3/10/2006 and to be recorded in the Office of the Clerk of the County of Suffolk.
4. Subordination Agreement made by and between Bridgehampton National Bank and EWH, LLC and the Town of Southold, dated
3/10/2006 and to be recorded in the Office of the Clerk of the County of Suffolk.
STEWART TITLE
INSURANCE COMPANY
HEREIN CALLF. D TH~ COMP,ANY
Title No.: ST-$-6339
STANDARD NEW YORK ENDORSEMENT
(Owner's Policy)
ATTACItED TO AND MADE A PART OF POLICY NUMBER
0-8831-352630
1. The following is added to tho i~suring provisions on the face page of this policy:
"$. Any statutory' lien for .mrvie~. labor or maWrial furnished prior to the date h~of, and which has now gained or which
may here~ fter gain priority over the estate or in terest of the i~anred as shown in $uhedule A of this policy.'
2. The following is added to Paragraph 7 of the Conditions and Stipulations of this policy:
"(d) If the recording date of the insUuments ~mting tlle insured in0:rcst is later than the policy date, ~uch policy shall also
cover intervening liens or enoambrances, except real e.stale rexes, assessments, water ¢llarges, and sewer rents"
Nothing herein contaiuod shall be construed as extending or changing the effeclive date of the policy unle~ otherwi,.m expressly
stated.
This endorsemenl, when countersigned below by a validating signatory, is made a part of the policy and is subject to the Exclusions
from Coverage, Schedules, Conditions and 1Stipulations therein, except as modified by the provisions hereof.
Signed on March I0, 2006
STEWART TITLE
Stewart Title lnsurauce Company ~s~g~,~cz
Signed by: ~~,,
Authorized Office or, ~
Stewart Title lnsttrance Company
125 Baylh Road Suite 201 .. ~.-
Melvtlle~ New York 11747 ~
Agent No.: 327005
STANDARD NEW YORK ENDOK~EM ENT (9/ /93)
FOR US E WITH ALTA OWNER'S POL1cY ( I 0/17/92)
CONDITIONS AND STIPULATIONS
1. DEFINITION OF [EPJVLS.
The fo[lowing terms when used in this policy meom
(a) "insured": the insured named in Schedule A, and, subied' to any rights or defenses
the Company would have hod against the humeri insured, those who succeed to the interest
of the named insured by oporalioa of Iow as distinguished from purchase including, but not
limited to, heirs, distributees, devisees, sun/ivors, personal representatives, next of kin, ar
corporate or fiduciary successors.
(b) "insured cloimonr': un insured claiming loss or damage.
(c) "knowledge" or "known": actual knowledge, not constructive knowledge or notice
which may be imputed to an insured by reason of the public records as defined in this policy
or any ether records which import constructive notice of matters affecting the land.
(d) "land": the land described or referred to in Schedule A, and improvements affixed
thereto which by law constitute real property. The term "lnnd" does not include any properly
beyond the lines of the area described or referred to in Schedule A, nor any right, title,
interest, estate or easement in abutting streets, roads, avenues, alleys, tunes, ways or
waterways, but nothing herein shell modify or limit the extent ta which a right of uccess to
und from the land is insured by this policy.
e) "mortgage": mortgage, deed of trust, trust deed, or other socurily instrument.
f) "pub Jc records": records established under state statutes at Date of Policy fur the
purpose of imparting constructive notice of mnttem relating to real property to purchasers for
value and without knowledge. With resped Io Sedion )(a)(iv) of the Exclusions From
Coverage, "public records" shall also include environmental protection liens filed in the
records of lhe clerk of the United States district court fac the district in which the land is
located.
(g) "unmarketability of the tilJe": an alleged or apparent matter affecting the title to
the laud, not excluded or excepted from coverage, which would entitle a pmchosor of the
estate or interest described in Schedule A Io he released from the obligation to purchase by
virtue of a conlradual condition requiring the delivery of marketable title.
2. CONTINUATION OF INSURANCE AFTER CONVEYANCE OF TITLE.
The coverage of this policy shall continue in force as of Date of Policy in favor of an
insured only so long as the insured retains an estate or interest in the land, or holds an
indebtedness secured by a purchase money mortgage given by a purchaser from the insured,
or only so long as the insured shall have liabilily by reason of covenants of warranty made by
the insured in any transfer or conveyance of 'the estate or interest. This policy shall not
continue in force in favor of any purchaser from the insured of either (i) au estale or interest
in the land, or (ii) an indebtedness secured by a purchase money mortgage given lo the
insured.
3. NOTICE OF CLAIM TO BE GIVEN BY INSU RED ClAI~NT.
The insured shall notify the Company promptly in writing (i) in case of any litigation as
set forth in Sediee 4Ca) below, (ii) in case knowledge shall come to an insured hereunder of
any claim of litle or interest which is adverse to the title to the estate or interest, as insured,
and which might cause loss or damage for which lhe Company may he liable by vidue of ~his
policy, or (iii) if title to the estate or iuterest, as insured, is rejected as unmarketable. If
prompt notice shall not be given to the Company, then as to the insured all liability of the
Company shall terminate with regard to lhe mailer or metiers for which prompt notice is
required; provided, however, that failure to notify the Company shall in no case prejudice the
rights of any insured under this policy unless the Company shall be prejudiced by the failure
and then only to the extent of the prejudice.
4. DEFENSE AND PROSECUTION OF ACTIONS; DUI'/OF INSURED C~I~flT TO
COOPERATE.
Ca) Upon written request by the insured and subject to the options contained in Section
6 of these Conditions and Stipulatiees, the Company, et its own cost and without
unreasonable delay, shall provide for the defense of an insured in litigation Jn which any third
party asserts a claim adverse Io the title or interest as insured, but only os to those stated
causes of action alleging a defect, Jiee or encumbrance or other mai~er insured against by this
policy. The Company shall hove the right to select counsel of its own choice (subject to the
right of the insured to object for reasonable cause) to represent the insured as to those stated
causes of adion and shall not he liable roi and will not pay the fees of any other counsel.
The Company will not pay any fees, costs or expenses incurred by the insured ia the defense
of those causes of action which allege mantels not insured against by this policy.
Cb) The Company shall have the right, at its own cost, to institute and prosecute any
action or proceeding or to do any other ad which in its opinion may be necessary or desirable
to eslahrish the title to the estate or interesh as insured, or to prevent or reduce loss or
damage to the insured. The Company may toke any appropriate action under the terms of
this policy, whether or not it shall be liable hereunder, and shall not thereby concede liability
or waive any provision of this policy. If the Company shall exelcJse it rights under this
paragraph, it shall do so diligently.
(c) Whenever the Company shall have brought an action or interposed o defense es
required or pocmitted by the provisions of this policy, the Company may pursue any litigation
to final determination by o court of competent jurisdiction and expressfy reserves the right, in
its sole discretion, to appeal from any adverse judgment or order.
(d) In oll cases where this policy permits or requires the Company to prosecute or
provide for the defense of any action or proceeding, the insured shall secure to the Company
the right to so prosecute or provide defense in the action or proceeding, and oil appeals
therein, and permit the Company to use, at its option, the name of the insured for this
purpose. Whenever requested by the Company, the insured, at the Company's expense, shall
give the Company all reasonable aid (i) in any action or proceeding, securing evidence,
obtaining witnesses, prosecuting or defending the action or proceeding, or effecting
seHlement, and (ii) in any other lawful od which in the opinion of the Company may be
necessary or desirable to establish the title Io lhe estate or interest as insured. If the
Company is prejudiced by the failure of the insured to J~rnish the required cooperation, the
Company's obligations to the insured under the policy shall terminale, including any liability
or obligation to defend, prosecute, or continue uny litigation, with regard to the maitre or
matters requiring such coopolation.
5. PROOF OF LOSS OR DAMAGE
In addition to and after the notices required under Sedion 3 of these Conditions and
Stipulations have been provided the Company, o proof of loss ac damage signed and sworn to
by the insured claimant shaft be furnished to the Company within 90 days after the insured
claimant shall ascertain the facts giving rise to the loss or damage. The proof of loss or
damage shall describe the defect in, or lien or encumbrance on the title, ar other matter
insured against by this policy which constitutes the basis of loss or damuge and shall slate, Io
the extent possible, the basis af calculating the amount of the loss or damage. If the
Company is prejudiced by the failure of the insured claimant to provide the required proof of
loss or damage, lhe Company's obligations ta the insured under the policy shall terminate,
including any liahiJily or obligation to defend, prosecute, or continue any litigation, with
regard to the mailer or matters requiring such proof of loss or damage.
in addition, the insured claimant may reasonably he required to submit to examination
under oath by any authorized representalive of the Company and shall produce for
examination, inspediee and copying, at such reasonable times and places as may he
designated by any authorized representative of the Company, all records, books, ledgers,
checks, correspondence and memoranda, whether bearing a date before ar after Date of
Policy, which reasonably pertain to the loss or damage. Further, if requested by uny
authorized representative of the Company, the insured claimant shall grant its permission, in
writing, for any authorized representative of the Company to examine, inspect and copy all
records, books, ledgers, checks, correspondence and memmaeda in lhe custody or control of a
third party, which reeseeab[y pertain to the loss or damage. All information designated as
confidential by the insured claimant provided to the Company pursuant to this Section shall
not be disclosed to others unless, in the maseeahle judgment of the Company, it is necesse~
in the administration of the claim Pailure of the insured claimant to submit for examination
under oath, produce other reasonably requested information or grant permission to secuce
reasonably necessary information from third parties as required in this paragraph shall
terminate any liability of the Company under this policy as to that claim.
6. OPTIONS TO PAY OR OTHERWISE SETTLE C!.~I~; TE~INATION OF LIABILI'IY.
In case of a claim under this policy, the Company shall have the following additional
options:
(a) To ?ay or Tender Poymenl of the Amount of Insurance.
To pay or tender payment of the amount of insurance under this policy together with auy
costs, attorneys' fees and expenses incurred by the insured claimant, which were authorized
by the Company, up to the time of payment or tender af payment and which the Company is
obligated to pay.
Upon the exercise by the Company of this option, all liability and obligations to the
insured under this policy, other than to olake the payment required, shall terminate,
including any hahility m obligation to defend, prosecule, or continue any litigation, and the
policy shall he surrendered to the Company for cancellation.
(b) To Pay or Otherwiso Settle With Parties Other than the Insured or With the
Insured Claimant.
(i) to pay al otherwise settle with other parties far or in the name of an insured
claimant any claim insured against under this policy, together with any costs, aHmneys' fees
and expenses hlcurmd by the insured claimant which were authorized by the Company up to
the time of payment and which the Company is obligated to pay; or
(ii) to pay or otherwise settle with the insured claimant the loss or damage
provided for under this policy, together with any costs, attorneys' fees and expenses incurred
by the insured claimant which were authmized by the Company up to the time of payment
and which the Company is obligated to pay.
,(continued and concluded on last page of this policy)
burtUl i iuri~ RrllJ b I I]'UL/I I iurib L, onrmueo
(contitiued and concluded from reverse side of Policy Face)
Upon the exercise by the Company of either of the options prpvided far ig paragraphs
(b)(i) or (ii), the Company's obligations to the insured under this policy for the claimed loss or
damage, other than the payments required to be mode, shall termiente, including any
liability or obligation to defend, prosecute al continue any litigation.
7. DETERMINATION, EXTENT OE UABILIIY AND COINSURANCE.
This policy is a contract of indemnity against actual monetary loss or damage sustained
or incurred by the insured claimant who has suffered loss or damage by reason of matters
insured against by this policy and only to the extent herein described.
(o) The liability of the Company under this policy shall not exceed the leest of:
(i) the Ameent of Inserunce stated in Schedule A; m,
(ii) the difference belween the value of the insured estate or interest os insured
and lhe value of the insured estate or interest subject to the defect, lien or encumbrnnce
insured against by this policy.
Ch) In the event the Amount of Insurance stated in Schedule A at the Date of Policy is
less than DO percent of the value of the insured estate or interest or the fell consideration paid
for the estate or interest, whichever is less, or if subsequent te the Date of Policy nn
improvement is erected on the land which increases the value of the insured estate or interest
by at least 20 percenl over the Amount of Insurance stated in Schedule A, then this Policy is
subject to the following:
(i) where no subsequent improvement has been made, as to any partial loss, the
Company shall only pay the loss pro rata in the proportion that the amount of insurance at
Date of Policy hears la the total value of the insured estate or interest at Date of Policy; m
(ii) where e subsequent impravement has been made, as to any partial loss, the
Company shall only pay the loss pro rala in the proportion that 120 percent of the Amount of
Insurance stated in Schedule A bears to the sum of the Amount of Insurance stated in
Schedule A and the amount expended fer the improvement.
The provisions of this paragraph shall not apply to costs, attorneys' fees and expenses far
which the Company is liable under this policy, and shall only apply to that portion of any loss
which exceeds, in the aggregate, 10 percent of the Amount of Insurance stated in Schedule A.
Cc) The Company will pay only those costs, attorney's fees end expenses incurred in
accordance with Seciion 4 of these Conditions and Stipulations.
8. APPORTIONMENT.
If the land described in Schedule A cansists of two er more parcels which are not used as
a single site, and a loss is established affeding one er more of the parcels but not all, the loss
shall be computed and settled on a pro tala basis as if the amount of insurance under this
policy was divided pre rata as to the value on Date of Policy of each separate parcel to the
whole, exclusive of any improvements made subsequent to Date ef Policy, unless u liability or
value has otherwise been agreed upon as to each parcel by the Company and the insured al
the time of the issuance of this policy and shown by an express statement or by an
endorsement attached to this policy.
9. LIMITATION OF LIABILI'IY.
Co) If the Company establishes the title, or removes the alleged defect, lien or
encumbrance, or cures the lack of a right af access to or [TOm the land, or cures the claim of
unmarketability of title, all as insured, in a Ieasenably diligenl manner by uny method,
including litigation and the completion of any appeals therefrom, it shall have fully penCormed
its obligations with respect to that matter und shall not be liable for aey loss or damage
caused thereby.
Cb) In the event of any htigation, including litigation by the Company ar with the
Company's consent, the Company shall have no liabdgy for loss or damage until there has
been a final determination by a court of competent jurisdiction, and disposition of all appeals
therefrom, adverse to the title as insured.
Cc) The Company shall ant be liable far loss er damage to any insured for liability
voluntarily assumed by the insured in settling any claim or suit without the prier written
consent of the Company.
10. REDUCTION OF INSURANCE; REDLICTION OR TE~INATION OF LIABILI'IY.
Ail payments under this policy, except payments made for costs, attorneys' fees and
expenses, shall reduce the amount of the insurance pro tonto.
11. LIABILI1? NONCUMUlaTIVE.
It is expressly understood that the amount of insurance under this policy shall he reduced
by any amount the Company may pay under any policy insuring a mortgage to which
exception is taken in Schedule B or tn which the insured has agreed, assumed, or taken
subject, or which is hereafter executed by an insured and which is e charge or lien on the
estate or interest described m leferred tn in Schedule A, and the amount so paid shell be
deemed a payment under this palicy to the insured owner.
12. PAYMENT OF LOSS.
Ca) No payment shall be made without producing this policy for endorsement of the
payment unless the policy has been lost or destroyed, in which case proof of loss or
destruction shall be furnished to the satisfaction of the Company.
Cb) When liability and the extent of loss or damage has been definitely fixed in
accordance with these Conditions and Stipulations, the loss or damage shall be payable
wJthJe 30 days thereafter.
13. SUBROGATION UPON PAYMENT OR SETTL~ENT.
Ca) The Company's Rigid' of SubrogaNon.
Whenever the Company shall have settled and paid a claim under this policy, all right of
subrogation shall vest in the Company unaffected by any ad of the insured claimant.
The Company shall be submgated to and be entitled to all rights and remedies which the
insured claimant would have had against any person or property in respect to the claim hacl
this policy not been issued. If requested by the Company, the insured claimant shall transfer
to the Company all rights and remedies against any person or properly necessary in order to
per[ed lhis righl of subrogation. The insured claimanl shall permit the Company to sue,
compromise or settle in the name of the insured claimant and to use the nome of the insured
claimant in any lraesaction or litigation involving these rights or remedies.
If e payment on account of a claim does not fully cover the loss of the insured claimant,
the Company shall be submgeted to these rights end remedies in the proportion which the
Company's payment bears to the whole amount of the loss.
If loss sheuld result [Tom any ad of the insured claimant, as stated above, that ad shall
not void this policy, hut the Compnny, in that event, shall be required te pay only that part of
any Josses insured against by lhis policy which shall exceed the amount, if eny, lost to the
Company by reason of the impairment by the insured claimant of the Company's right of
subrogation.
Cb) The Compa~s Rights Aooinst Non-insured ObliDom.
The Company's right of submgetion against non-insured obligors shall exist and shall
include, without limilation, the rights of the insured to indemnities, guaranties, other policies
of insurance or bonds, nolwithstanding any terms or conditions contained in those
instruments which provide for subrogation rights by reason of this policy.
14. ARBITRATION
Llnless prohibited by applicable law, either the Company or the insured may demand
arbitraDan pursuant to the Title Insurance Arbitration Rules of the American Arbitration
Association. Arbitrable maMem may include, but are net limited la, any controversy or claim
belween the Company and the insured arising out of or relating ta this policy, any service of
the Company in connedion with its isseence or the breach of a policy prevision or other
obligation. All arbitrable matters, when the Amount of Insurance is 51,000,000 or less shall
be arbitrated at the option of either the Company ar the insured. All arbitrable molters when
the Amount of Insurance is in excess of Sl,0OO, OgO shall he arbitrated only when agreed to
hy both the Company and the insured. Arbitration pursuant to this policy and under the Rules
ia effeci on the date the demand far arbitration Js made or, at the option of the insured, the
Rules in effect at Date of Pelicy shall he binding upon the parties. The award may include
attorneys~ fees only if the law of the state in which the land is located permil a court to
award attorneys' fees to a prevailing pa~. Judgment upon the award rendered by the
Arbitrator(s) may be entered in any court having jurisdiction thereof.
The law of the situs of the land shall apply to an arbitration under the Title Insurance
Arbitration Rules.
A copy of the Rules may be obtained from the Company upon request.
15. LIABILI'IY LIMITED TO THIS POLICY; POLICY ENTIRE CONTRACT.
(a) This peJicy together with all endarsements, if any, aHached hereto by the Company
is the entire policy and (entrad between the insured and the Company. In interpreting any
provision of this policy, this policy shall be construed as a whole.
Cb) Any claim cf loss or damage, whether or not based on negligence, and which arises
out of the status of the title to the estate or interest covered hereby er by any ac'ion asserting
such claim, shall he restricted to this policy.
Cc) Ne amendment of or endorsement ta this policy CaR be made except by a writing
endorsed hereon or attached hereto signed by either the President, a Vice President, the
Secretary, an Assistant Secretary, or validating officer or authorized signatory of the Company.
J6. SEVERABILITY.
In the event uny provision of the policy is held invalid or unenforceable under applicable
law, the policy shall be deemed nat to include that provision and all other provisions shall
remain in fell force and effect.
17. NOTICES, WHERE SENT.
All notices required to be given the Company and any statement iu writing required to be
furnished the Company shall include the numhm of this pa[ky and shod he addressed to the
Company at 300 East 42nd Street, New York New York 1001Y.
STEWART TITLE®
STEWART TITLE®
POLICY
OF
TITLE
INSURANCE
STEWART TITLE®
300 East 42nd Street
NewYork NewYork 10017
STEWART TITLE®
POLICY
OF
TITLE
INSURANCE
STEWART TITLE®
300 East 42nd Street
New York, New York 10017
STEWART TITLE®
POLICY
OF
TITLE
INSURANCE
STEWART TITLE®
300 East 42nd Street
New York, New York 10017
CONSENT
I, Peter Harbes, am the managing member ofEWH, LLC. I have the consent of at least two-
thirds in interest of the members of EWH Limited Liabililty Company to sell the development
rights on the premises known as "Development Rights Area" on a certain map entitled, "Survey
of Described Property situate Mattituck, Town of Southold, Suffolk County, N.Y. surveyed for:
E.W.H. Limited Liability Company", SCTM//1000-120-03-011.12 in accordance with the
Articles of Organization and Operating Agreement and to have the proceeds check from the sale
issued to Peter Harbes.
Dated:
EWH, LLC
By:
Peter Harbes, Managing Member
STATE OF NEW YORK )
COUNTY OF SUFFOLK )
On the-'~/{}-6- day of March, 2006, before me, the undersigned, a notary public in and for
said State, personally appeared Peter Harbes personally known to me or proved to me on the
basis of satisfactory evidence to be the individual whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument.
TITLE NO. ST-S-6330
Dist: 1000 Section: 120.00 Block: 03.00 Lot: 011.012
Premises: 5645 Aldrich Lane, Mattituck, NY 11952
STATE OF NEW YORK )
) SS.:
COUNTY OF SUFFOLK )
Peter Harbes being of full age, being duly sworn, deposes and says:
I am, Peter Harbes, the managing member of EWH, Limited Liability Company the seller
of the developments rights on the above described premises.
THAT I reside at 935 Laurelwood Drive, Laurel, NY 11948;
THAT the Right of Way as set forth in Liber 3493 at Page 32 (copy attached) mentioned
in the above referenced title report bas been extinguished for over thirty (30) years;
THAT I make this affidavit to induce Stewart Title Insurance Company to issue its policy
of title insurance, knowing that they rely on the truth of the statements contained herein..
Sworn to before me this
day of March, 2006
· ~qotary l~ubli~ - t3 ,
Peter Harbes
AFFIDAVIT THAT POWER OF ATTORNEY
IS IN FULL FORCE AND EFFECT
STATE OF NEW YORK, COUNTY OF SUFFOLK, ss.
I, Peter Harbes, being duly sworn, depose and say:
THAT Edward W. Harbes, Jr., having an address at 555 Sound Avenue,
Mattituck, NY 11952, as principal, did, in a writing dated March 9, 2004, appoint me his true
and lawful attorney-in-fact, and that attached hereto is a true copy of said power of attorney.
THAT I have no actual knowledge or actual notice of the revocation or
termination of the aforesaid power of attorney by death or otherwise, or knowledge of any facts
indicating the same. I further represent, to the best of my knowledge after diligent search and
inquiry, that: said principal is now alive; has not, at any time, revoked, terminated, suspended or
repudiated the power of attorney; and the power of attorney still is in full force and effect.
TItAT I make this affidavit for the purpose of inducing
to accept delivery of the following instrument(s), as executed by me in my capacity of attorney-
in-fact of said principal, with full knowledge that this affidavit will be relied upon in accepting
the execution and delivery of said instrument(s) and in paying good and valuable consideration
therefor:
Dated:
Subscribed and sworn to before me
on March I(~ , 2006
/ Notar~blic
My commission expires on /V~ ) ~6~
CONSULT YOUR LAWYER BEFORE SIGNING THIS INSTRUMENT -
THIS INSTRUMENT SHOULD BE USED BY LAWYERS ONLY
DURABLE GENERAL POWER OF ATTORNEY
revised 1/1/97
NEW YORK STATUTORY SHORT FORM
THE POWERS YOU GRANT BELOW CONTINUE TO BE EFFECTIVE
SHOULD YOU BECOME DISABLED OR INCOMPETENT
CAUTION: This is an important document. It gives the person
whom you designate (your "Agent") broad powers to handle your
property during your lifetin~, which may include powers to
mortgage, sell, or otherwise dispose of any real or personal
property without advance notice to you or approval by you. These
powers will continue to exist even after you become disabled or
incompetent. These powers are explained more fully in New York
General Obligations Law, Article 5, Title 15, Sections 5-1502A
through 5-1503, which expressly permit the use of any other or
different form of power of attorney.
This doctunent does not authorize anyone to make medical or
other health care decisions. You may execute a health care prow
to do this.
If there is anything about this form that you do not
understand, you should ask a lawyer to exl~lain it to you.
THIS is intended to constitute a DURABLE GENERAL POWER OF ATTORNEY
pursuant to Article 5, Title 15 of the New York General
Obligations Law:
I, Edward W.
Harbes, Jr.
Residing at:
555 Sound Avenue
Mattituck, NY 11952
Do Hereby Appoint:
Peter Harbes
Residing at:
935 Laurelwood Drive
Laurel, NY 11948
(If 1 person is to be appointed agent, insert the name and
address of your agent above)
Do Hereby Appoint:
Residing at:
(If 2 or more persons are to be appointed agents by you insert
their names and addresses above)
',,~,'. iiz'' Page 1 of 5 Pages
my attorney(s)-in-fact TO ACT (If more than one agent is
designated, CHOOSE ONE of the following two choices by putting
your initials in ONE of the blank spaces to the left of your
choice:)
( )Each agent may SEPA3~ATELY act.
( )Ail agents must act TOGETHER.
(If neither blank space is initialed, the agents will be required
to act TOGETHER)
IN MY NAME, PLACE AND STEAD in any way which I myself could do, if
I were personally present, with respect to the following matters
as each of them is defined in Title 15 of Article 5 of the New
York General Obligations Law to the extent that I am permitted by
law to act through an Agent:
(DIRECTIONS: Initial in the blank space to the left of your choice
any one or more of the following lettered subdivisions as to which
you WANT to give your agent authority. If the blank space to the
left of any particular lettered subdivision is NOT initialed, NO
AUTHORITY WILL BE GRANTED for matters that are included in that
subdivision. Alternatively, the letter corresponding to each
power you wish to grant may be written or typed on the blank line
in subdivision "(Q)", and you may then put your initials in the
blank space to the left of subdivision "(Q)" in order to grant
each of the powers so indicated)
(~) (A) Real estate transactions;
(~i/~) {B) Chattel and goods transaction;
(~/~) (C} Banking transactions;
~/~) (D) Business operating transactions;
~/~) (E) Insurance transactions;
~1t} (F} Claims and litigation;
~) (G) Records, reports and statements;
~} (H} Retirement benefit transactions;
~) (I) Tax matters;
(J) Ail other matters;
Full and unqualified authority to my attorney(s)-in-
fact to delegate any or all of the foregoing powers to
any person or persons whom my attorney(s)-in-fact shall
select;
Page 2 of 5 Pages
(~/~) (L) Make transfers of interest in any companies or
businesses I own, even to my attorney-in-fact, in a
manner consistent with my estate plan.
(f~) (M) Each of the above matters identified by the following
letters: ........................... ;
(Special provisions and limitations may be included in the
statutory short form durable power of attorney only if they
conform to the requirements of Section 5-1503 of the New York
General Obligations Law.)
NOTWITHSTANDING THE FOREGOING, THE ABOVE POWERS ARE LIMITED TO
MATTERS INVOLVING EWH LIMITED LIABILITY COMPANY, OR ANY
ENTITY(IES) SUCCEEDING TO SUCH BUSINESSES.
Special Additional Provision: The powers granted under (A)
through (C) above shall include the sale of a cooperative housing
unit and are enlarged so that all fixtures and articles of
personal property which at the time of such transaction are or
which may thereafter be attached to or used in connection with the
real or personal property may be included in the agreements or
other instruments to be executed and delivered in connection with
any transactions and which may be described in said instruments
with more particularity. This Power of Attorney is not subject to
question because an instrument executed hereunder fails to recite
or recites only nominal consideration paid therefore and any
person dealing with the subject matter of such instrument may do
so as if full consideration had been expressed herein.
This Durable Power of Attorney shall not be affected by my
subsequent disability or incompetence.
If every agent named above is unable or unwilling to serve,
I appoint:
residing at:
(insert name and address of successor)
to be my agent for all purposes hereunder.
Page 3 of 5 Pages
TO INDUCE ANY THIRD PARTY TO ACT HEREUNDER, I HEREBY AGREE THAT
ANY THIRD PARTY RECEIVING A DULY EXECUTED COPY OR FACSIMILE OF
THIS INSTRUMENT MAY ACT HEREUNDER, AND THAT REVOCATION OR
TERMINATION HEREOF SHALL BE INEFFECTIVE AS TO SUCH THIRD PARTY
UNLESS AND UNTIL ACTUAL NOTICE OR KNOWLEDGE OF SUCH REVOCATION OR
TERMINATION SHALL HAVE BEEN RECEIVED BY SUCH THIRD PARTY, AND I
FOR MYSELF AND FOR MY HEIRS, EXECUTORS, LEGAL REPRESENTATIVES AND
ASSIGNS, HEREBY AGREE TO INDEMNIFY AND HOLD HARMLESS ANY SUCH
THIRD PARTY FROM AND AGAINST ANY AND ALL CLAIMS THAT MAY ARISE
AGAINST SUCH THIRD PARTY BY REASON OF SUCH THIRD PARTY HAVING
RELIED ON THE PROVISIONS OF THIS INSTRUMENT.
This Durable General Power of Attorney my be revoked by me at any
time.
In Witness Whereof, I have hereunto signed my name this ~/~ day
of ~<~ 2004.
Acknowledgement
STATE OF NEW YORK)
) ss.:
COUNTY OF SUFFOLK)
On the ~day of
/~'~ in the year 2004 before me, the
undersigned, personally appeared EDWARD W. HA_RBES, JR., personally
known to me or proved to me on the basis of satisfactory evidence
to be the individual whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the
individual, or the person upon behalf of which the individual
acted, executed the instrument. //~/~-~ /~
JAY R QUARTARARO
Nota~ Publio, ~ate o! N~
No. O2QU~55895 Notary Public of t~-e Stat~ of New York
Ou~lfled in 8uffolk Count~
My Commission Expires: q-~[~/6~
Page 4 of 5 Pages
N
Y
S
A
G
M
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T
S
W
A
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E
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WAIVER
NYS DEPARTMENT OF AGRICULTURE AND MARKETS
I am the owner of 34.5 acres of active farmland and/or -0- acres of non-farmland,
situated at 5645 Aldrich Lane, Laurel, in the Town of Southold, County of Suffolk, State of
New York, designated as part of Suffolk County Tax Map No. 1000-120-3-11.12 and, that is
proposed to be acquired by the Town of Southold in Suffolk County Agricultural District #1.
Pursuant to Section 305(4)(d) of the New York State Agriculture and Markets Law, I hereby
waive my right to require the Town of Southold to file with the Commissioner of Agriculture
and Markets and the County Agricultural and Farmland Protection Board a Preliminary and
Final Notice of Intent in accordance with paragraphs (b) and (c) of section 305(4) of the
Agriculture and Markets Law.
Project Sponsor
TOWN OF SOUTHOLD
By:
Scott A. Russell, Supervisor
53095 Route 25
P.O. Box 1179
Southold, New York 11971-0959
Landowner
EWH, LLC
P.O. Box 1731
Mattituck, NY 11952
STATE OF NEWYORK )
COUNTY OF SUFFOLK )
)SS:
On the /() day of March, 2006, before me personally appeared SCOTT A.
RUSSELL, personally known to me or provided to me on the basis of satisfactory evidence
to be the individual whose name is subscribed to the within instrument and acknowledged
to me that he executed the same in his capacity as Supervisor of the TOWN OF
SOUTHOLD; that he knows the seal of said municipal corporation; that the seal affixed to
said instrument is such corporate seal; and that by his signature on the instrument, the
individual, or the municipal corporation upon behalf of which the individual acted, executed
the instrument and affixed the seal thereto by like order.
STATE OF NEW YORK
)SS:
COUNTY OF SUFFOLK
On the / 0~--day of March, 2006, before me personally appeared PETER HARBES,
personally known to me or provided to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and acknowledged to me that
he executed the same in his capacity as owner of the subject premises; and that by his
signature on the instrument, the individual, or the persons upon behalf of which the
individual acted, executed the instrument.
Nota~ /-~'~-J/
New York State Department of Environmental Conservation
Division of Lands & Forests
Bureau of Real Property, 5th Floor
825 Broadway, Albany, NewYork 12233-4256
Phone: (518) 402-9442 · FAX: (518) 402-9028
Website: www.dec.state.ny.us
Melissa Spiro
Department of Land Preservation
Town of Southold
P.O. Box 1179
Southold, NY 11971-0959
April 6, 2007
Dear Ms. Spiro:
We have received and filed in our office the following conservation easements:
CE: Suftblk 438
Grantor: EWH, Limited Liability Company
Liber: D12445 Page: 87
The conservation easements cited above have been so identified for our indexing and
filing purposes. This number may be needed for the landowner to claim a conservation easement
tax credit. When contacting this office about these parcels, please use the assigned identifier.
Your cooperation in this matter is very much appreciated.
Very truly yours,
Timothy A. Reynolds
Real Estate Specialist 2
Bureau of Real Property
TAR:gm
MELISSA A. SPIRO
LAND PRESERVATION COORDINATOR
melissa.spiro @ town.southold.ny.us
Telephone (631) 765-5711
Facsimile (631) 765-6640
OFFICE LOCATION:
Town Hall Annex
54375 State Route 25
(corner of Main Road & Youngs Avenue)
Southold, New York
MAILING ADDRESS:
P.O. Box 1179
Southold, NY 11971-0959
DEPARTMENT OF LAND PRESERVATION
TOWN OF SOUTHOLD
April 2, 2007
NYSDEC
Bureau of RealProperty
625 Broadway, 5~ Floor
Albany, NY 12233-4256
Attention:
Re:
Tim Reynolds
Conservation Easements Registry
EWIt, LIMITED LIABILITY COMPANY to TOWN OF SOUTHOI ~D
Dear Mr. Reynolds:
Enclosed please find a copy of the recorded Grant of Development Rights Easexnent on agricultural
property located within the Town of Southold to be registered with the New York State Department of
Conservation. Details regarding this easement are as follows:
GRANTOR:
GRANTEE:
SUFFOLK CO RECORDING DATE:
LIBER:
PAGE:
LOCATION:
EASEMENT ACREAGE:
SUFFOLK CO TAX MAP #:
EWH, Limited Liability Company
Town of Southold
April 12, 2006
D00012445
087
5645 Aldrich Lane, Laurel, NY
34.5 acres
1000-120~00-03.00-011.014
Kindly acknowledge receipt of this document by providing me with the NYS-DEC control number
assigned to tlfis easement.
Sincerely,
//
Melissa Spiro
Land Preservation Coordinator
euc.
cc: EWH, LLC Attn: Peter Harbes - P.O. Box 1731, Mattituck, NY 11952 w/o clio.
G
R
A
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T
I
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F
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M
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I
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N
A
DETACH HERE
BEFORECASHING
~ [ Check Total ]
PLEASE CASH
WITHIN '180 DAYS
*****$2,475,385. O0 [
:[ ?
MELISSA A. SPIRO
LAND PRESERVATION COORDINATOR
melissa.spiro @ town.southold.ny,us
Telephone (631) 765-5711
Facsitnile (631) 765-6640
OFFICE LOCATION:
Town Hall Annex
54375 State Route 25
(comer of Main Road & Youngs Avenue)
Southold, New York
MAILING ADDRESS:
P.O. Box 1179
Southold, NY 11971-0959
DEPARTMENT OF LAND PRESERVATION
TOWN OF SOUTHOLD
FedEx
April 20,2006
David H. Behm
Farmland Protection Program Manager
NYS Department of Agriculture and Markets
Division of Agricultural Protection
10B Airline Drive
Albany, NY 12235
Re:
Town of Southold
Contract No. C800606 ($1,200,000)
Project:
HARBES Farm
SCTM #1000-120-3-p/o 11.12
Dear Mr. Behm:
I am pleased to advise you that on March 10, 2006, the Town of Southold
acquired the development rights on the Harbes Farm (EWH Limited Liability Company)
located on Aldrich Lane in Mattituck, New York. The easement comprises 34.5 acres of
the 39.35 acre farm. A 4.85 acre area was reserved from the easement. The total purchase
price of $1,897,500.00 was based upon 34.5 buildable acres at $55,000/acre.
I am, therefore, submitting the following documents regarding the Town of
Southold's request for State payment in the amount of $1,125,385.00 under contract
#C800606 due to expire on March 31, 2007, for the development rights easement
purchased from:
EWH Limited Liability Company (Harbes Farm d/b/a David Rose Perennials)
SCTM #1000-120-3-11.14 ( f/lq/a SCTM #1000-120-3-p/o 11.12)
· State of New York - Standard Voucher;
· Budget report;
· Form B - Budget Information;
Page 2
April 19, 2006
David Behm
NYS Department of Agriculture and Markets
Division of Agricultural Protection
Re: Town of Southold - Contract No. C800606 ($1,200,000)
Harbes Farm
· Development Rights Purchase and Sale Agreement dated March 6, 2006
(copy);
· Title Insurance Policy No. O-8831-352630, title search #ST-S-6330, in the
amount of $1,897,500.00 issued 3/10/06 (copy);
· Letter from Lisa Clare Kombrink, Special Counsel to the Town of
Southold, dated March 7, 2006, stating her professional legal opinion
concerning the Right of Way located on the subject property. Additional
information concerrting the right of way follows the title report included
in the Baseline Documentation;
· Recorded Grant of Development Rights Easement dated 3/10/06
(certified copy);
· Recording documents - TP-584, RP-5217 and Peconic Bay Region CPF
forms (copies);
· Monitoring Plan;
· NYS Dept. of Agriculture and Markets Waiver executed 3/10/06 (copy)
· Amended survey dated March 22, 2006 (included at back of Baseline
Documentation); and
· Baseline Documentation (duplicate original)
Two copies of the appraisal were previously forwarded to you on February 7,
2006. I trust you will find any additional information you require within the pages of the
Baseline Documentation. If not, or if you have any questions regarding this project,
please call my office.
Upon your review and approval, kindly submit the voucher for payment.
Thank you.
Sincerely,
Melissa Spiro
Land Preservation Coordinator
/md
encs.
cc: John Cushman, Town Comptroller w/copies of voucher & budget info
Originating Agency
STATE
oF STANDARD VOUCHER
NEW. YORK
Orig, Agency Code (Y/N)
(MM) (DB) (YY) DSC Use Only
Payee ID Additional Zip Code Route
to 30 spaces)
Town of Southold
Payee Name (Limit to 30 spaces)
Address (Limit to g0 spaces)
53095 Route 25
Address (Limit to 30 spaces)
P.O. Box 1179
City (Limit to 20 spaces)
Southold
Orde¢ No
and Dine
(Limil to 2 spaces) -) Zip Code
11971-0959
Description of Material/Sewice
If items are too ~umerc~s lo be incorporated into the block below,
use Form AC 93 and carry total Ionvard.
Liability Date
Payee Amount
IRS Code IRS Amount
Slat. Type Statistic
5_.J Ref/Inv. NO. (Limit to 20 spaces)
Harbes Farm
(MM} (DD)
Indicator-Deph
Ref/Inv. Date (MM) (OD) {YY)
Quantity
Voucher No.
P-Contract
(YY)
MIR Date (MM) (OD) (YY
Indicator-Statewide
Agricultural Land Development Rights
HARBES Farm (EWH, LLC)
34.5 acres - development rights easement
Contract No. - $1,200,000.00
75% reimbursement = $1,125,385
7.j Payee Certification:
I ceddy that the above bill is j rue and correct; that no part thereof has been paid except as stated and that
~1,the balance is actually~~ Southold Town 3ervisordUe owing, and taxes from which the State is exempt are excluded
4/2.0/06 Town of Southold
Date
Name ol Company
FOR AGENCY USE ONLY
Merchandise Received
Date
Page No
I cenl y ha h s voucher is correc~ and just, and payment Ts approved, and the goods or services
rendered or fur n~shed are for use in the performance ol the official lunclions and duties of this
agency
$ 1,125,38.~ 00
$ 1,125,385.00
$ 1,125,385.00
STATE COMPTROLLER'S PRE-AUDIT
Certified For Payment
of
Verified Net Amount
Authorized Signalure
Audited
SpedalApproval
(as Requi~ed)
By Date
Cost Center Code
Cost Center Unit
Object
Expenditure
iquidation
Ac-cum
Amount
Orig Agency PO/Conlract
DSC [] Chec tinustion
Iorm is adached
Budget Report - New York State State of Ag & Markets
Contract No.
DAVID ROSE PERENNIALS - Peter Harbes Farm
(EWH Limited Liability Company)
Payee
Check No. Description
Peter Harbes
Amount
development rights $1,897,500
appraisal 1,900
survey 950
environmental report 1,300
title insurance 7,728
recording fees 635
closer attendance fee 100
Total Budget for Project
$1,910,113
Harbes Farm Proiect
Actual Cost of Development Rights (34.5 acres @ $55,000/acre) $1,897,500
Administrative Costs 12,613
Total Project Costs $1,910,113
Project Budget
Farm Name:
Peter Harbes Farm: 34.5 acres
PROJECT COSTS
Estimated Value of Conservation Easement
Municipality:
Town of Southold
$1,897,500 I(= $55/acre)
Administrative Costs
Title Insurance
Survey(s)
Appraisal
Outside Legal Review
Recording Fees
Stewardship Fee
Other
Subtotal
$5,000
$950
$1,900
$0
$635
$7,5OO
$1,4oo!
$17
Identify:
Administrative Costs (in-kind)
Staff Time
Travel/office expense
Other
Subtotal
Total Project Costs
$1,000
$3,0~00 identify:
$4,000
$t,918,885 I
FUNDING SOURCES
Local Match Funding
. Municipal Funds
Landowner Donation
In-Kind
Other (foundation, federal, etc.)
Subtotal
% of total project costs
$789,500
$4,O0O
$793,500
41.35%
$1,125,385
58.65%
Identify:
State Funding
State Funding
% of total project costs above
State cap at 32,000 =
Ad. Costs =
Ad. Costs (in-kind) =
Total =
1,104,000
17,385
4000
1,125,385
ESA =$1300 and
title closer = $100
LISA CLARE KOMBRINK, ESQ., P.C.
23s Hampton Road Southampton NY 11968 tel 631-287-3939 fax 631-287-3790
March 7, 2006
David Behm
Program Manager
New York State Department of Agriculture and Markets
103 Airline Drive
Albany, New York 12235
Re:
EWH, LLC to Town of Southold - - (Harbes Farm) SCTM# 1000-120-3-11.12
Sale/Purchase of Development Rights - - Contract #
$1,200,000.00 Grant
Dear Mr. Behm:
! am Special Counsel to the Town of Southold (the "Town") for matters involving
the purchase of development rights on agricultural lands. ! represent the Town
in the above transaction.
T have reviewed Title Report No. ST-S-6330 from Stewart Title Insurance
Company listing the Right of Way as set forth in Liber 3493 at page 32 in the
Suffolk County Clerk's Office and as shown on the survey prepared by Stanley _1.
!saksen, _ir., Land Surveyor dated March 2, 2006.
in my opinion, the Right of Way as described in the above document does not
interfere with the agricultural and farmland protection purposes for which the
development rights will be acquired. This opinion is based solely on my review
of the above documents and the Grant of Development Rights Easement to be
executed by the parties at closing.
Please let me know if you require anything further. Thank you for your
anticipated professional courtesy and cooperation.
Ver~
CC: tv
eliss~ Spiro
EWH, LLC (Peter Harbes)
to TOWN OF SOUTHOLD
SCTM #1000-120-3-p/o 11.12
Development Rights Easement - 34.5 acres
5645 Aldrich Lane, Mattituck
Closing held on Friday, March 10, 2006
from left to right:
Scott A, Russell, Southold Town Supervisor
Peter Harbes, Property Owner
Ellen Harbes, his wife
MELISSA A. SPIRO
LAND PRESERVATION COORDINATOR
melissa.spiro @ town.southold.ny.us
Telephone (631 ) 765-5711
Facsimile (631 ) 765-6640
OFFICE LOCATION:
Town Hall Annex
54375 State Route 25
(comer of Main Road & Youngs Avenue)
Southold, New York
MAILING ADDRESS:
P.O. Box 1179
Southold, NY 11971-0959
DEPARTMENT OF LAND PRESERVATION
TOWN OF SOUTHOLD
To.'
From:
Date:
Re:
Supervisor Russell
Town Board
Town Clerk
Land Preservation Committee
Town Attorney
Planning Board
Suffolk County Division of Real Estate
Tax Assessors
Building Department
Data Processing
Town Comptroller
Stewardship Manager
Peconic Land Trust, Inc.
The Nature Conservancy
Melissa Spiro, Land Preservation Coordinator
March 10, 2006
EWH, LLC (Peter Harbes) to TOWN OF SOUTHOLD
plo SCTM #'1000-120.3-11.t 2
Development Rights Easement
Please be advised that the Town has acquired a development rights easement on the
agricultural farmland listed below. If you would like additional information regarding the
purchase, please feel free to contact me.
LOCATION:
PROPERTY OWNER:
PURCHASE DATE:
PURCHASE PRICE:
EASEMENT ACREAGE:
FUNDING:
MISCELLANEOUS:
5645 Aldrich Lane, Mattituck
EWH, LLC (Peter Harbes)
Friday, March 10, 2006
$1,697,500.00 (based on $55,000/buildable acre)
34.5 acres on 39.35 acre property
CPF 2% Land Bank and eligible for NYS Ag & Markets
grant funds
This property is listed on the Town's Community
Preservation Project Plan. The current use is a perennial
nursery known as David Rose Perennials. The landowner
reserved 4.85 acres from the easement. The landowner
placed a C&R on the Reserve Area, timiting future
residential use to farm-related housing and prohibiting
subdivision of the Reserve Area from the farm area.
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File View Toolber Help
120.-3-11_12~ 473889, SouthoO
C,ty... Matbtuck. NY Z~p..11952- Schlager ~
Exemption · Toa 1 Te- n
Code Amount Year Pet
; 13.600 O 0
~20 AG Di"
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View north , boundary
February 2006 photos
February 2006 photos
m
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area
greenhouses
February 2006 photos
152320'
DEVELOPMENT RIGHTS AREA
FOUND
PHOTO PLACEMENT MAP
EWH, LLC (Peter Harbes)
to TOWN OF SOUTHOLD
Development Rights Easement - 34.5 acres
SCTM #1000-120-3-p/o 11.12
5645 Aldrich Lane, Mattituck, NY
Closing held on March 10, 2006
25 photos taken on March 9, 2006
1. From Aldrich Lane, directly across from Harvest Lane, facing westerly.
2. From entrance to access drive on Aldrich Lane, facing westerly.
From first curve towards south in access drive, facing westerly,
4. From first curve towards south in
houses and ag structure building.
, facing southerly towards hoop
5. From first curve towards south in access drive, facing southeasterly.
6. From second curve towards west in access drive, facing northwesterly.
7. From second curve towards west in access drive, facing westerly towards hoop
houses.
8. From second curve towards west in access drive, facing southwesterly towards ag
structure (office), parking lot and view of hoop houses on either side of building.
9. From second curve towards west in access drive, facing south showing poly-
greenhouses.
lO. From second curve towards west in access drive, facing southeasterly towards
southeast corner of easement.
11. From second curve towards west in access drive, facing southeasterly along
eastern boundary line.
From southeast quadrant of eaSement, facing northwesterly along eastern
boundary, View of hoop houses and ag structure (office) building
13. From southeast quadrant of easement, facing northwesterly.
14. From southeast quadrant of easement, facing west towards wooded area.
15. From southeast quadrant of easement, facing southwesterly towards back wooded
area.
16. From southeast quadrant of easement, facing south towards southeast corner of
easement.
17. From a point at intersection at woods line and reserved area, facing easterly
towards back of ag structure (office) building.
18, From
northerly towards hoop houses.
line with,
boundary line, facing
19. From a point at intersection of woods line with western boundary line, facing
northerly along western boundary line.
20. From a point at intersection of woods line with western boundary line, facing
southerly along western boundary line.
21. From a point at intersection of woods line with western boundary line, facing
easterly towards wooded area.
22. From a point at intersection of inside corner of connecting reserved areas, facing
southerly.
23. From a point at intersection of inside corner of connecting reserved areas facing
southeasterly over development rights easement.
24. From a point at intersection of inside cOrner of connecting reserved areas, facing
easterly towards poly-greenhouses.
25. From a point at intersection of inside corner of connecting reserved areas, facing
northerly towards back of ag structure (office) and poly-greenhouses.
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1994 Aerial Photograph
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1980 Aerial PhOtOgraph
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1976 Aerial Photograph
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1969 Aerial PhOf°graph
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1938 Aerial PhOtograph
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S 71'51'$0"W
1523,20'
RESERVED AREA
71952
SURVEY OF
D£SCRIBED PROP£RTY
MATFITUCK, TOWN OF SOUTHOLD
SUFFOLK COUNTY, N.Y.
SURVEYED FOR; E. W. H. LIMITED L/ABILITY COMPANY
ZONE A C
FINAL
SURVEY
WOODS LINE
LJ
0
RESERVED AREA
DEVELOPMENT RIGHTS AREA
25!--
FOUND
CONC
S
159
75'04'00"~~ Eou~a
CONC
MOM
366.18'
SEI FOUND
CONC, CONC,
C/o
TONE
MONUMENT,
RESET
02053
3
~ ~ ~bl II
2005
APR - ~
¸'1
SURVEYED BY
STANLEY J, ISAKSEN, JR,
P,O BO; 294
NEW SL NY 1¢956
651-7,
NYS Lic 9275 ;C1254RF-1